Practice and Procedure Relating to Proof of Documents

The matter is called out, you walk into court confidently thinking all your documents will be marked because you lot accept them neatly arranged in a compilation…15–twenty minutes later yous wonder why the documents are marked for identification and half your documents are non admitted. That senior who appeared but before me got his documents admitted….what happened to me?

Well most of the states have faced this at to the lowest degree in our junior days at the bar. Why did that happen?

The answer lies in the realm of sufficiency of proof of the document sought to be marked.

I'k going to discuss how to get over this as best as possible given the documents you have in hand in a given example.

First we need to sympathise that prove consists ­­of "documentary evidence" and "oral testify"

This article restricts itself to proof of documentary evidence.

Documentary evidence under the Evidence Deed, 1872 (the Human action) is of various types:

Broadly and most often we deal with "private documents"[i]. Documents such as letters, agreements, emails, etc. exchanged between contesting parties to a litigation are private documents.

The next prepare of documents which ane deals with are "public documents"[two] for instance documents such as a  birth certificate, marriage certificate, a nib of a public h2o utility or electrical visitor or an FIR filed before the police station. In these cases the record of the authority or a certified copy[three] or an extract is issued past an officer of a public say-so discharging functions delegated to him – these are public documents. A public document is one which is basically a reproduction of an entry contained in some kind of public register, volume or record relating to relevant facts or a certified copy issued by the authority as for example a nascence certificate providing details such as date of birth, place where the birth took place the name of the mother, etc. More often than not speaking, courts do accept public documents more readily than private documents equally in that location is a presumption that the risk of tampering with public documents is far less equally it has come from a reliable source such is the public record or register duly maintained in an official capacity. The Courts as well consider the entries in such records maintained past public authorities to be relevant facts[4]. Courts generally lean in favor of accepting or admitting the contents of public documents since these documents accept as their genesis some reliable source and can be traced dorsum to that reliable source for verification if necessary. However fifty-fifty a public document nevertheless doesn't stand proved by the mere fact of its product. Information technology must exist proved in the normal mode of proof as discussed hereafter when an objection to it is taken.

Sometimes you also deal with what are known as ancient documents or documents which are more than 30 years old[v]. Section ninety of the Act provides a presumption with regard to these documents.

In that location is also a category of documents which nosotros come beyond which could be public or private documents merely they are not documents in original. Proof of such documents poses a further complication when it comes to proving the same. To evidence such documents nosotros need to pb what we all know equally secondary evidence[6].

We besides come beyond cases where something is said past i person to another and that is not recorded in writing betwixt the two persons. In that case simply "oral evidence" would have to be given as opposed to "documentary evidence".

For all these cases what is needed to be proved is the truth of the  facts stated in the documents exist it an original certificate or a carbon re-create or xerox copy or a public document.

The question which really requires to exist answered is how is that done and what is the correct mode and mode of doing so.

Under the Act, the court usually accepts a fact is proved when afterwards considering the certificate and the evidence before it, it comes to the conclusion that what is stated in the certificate is believable based on what the document on the face up of information technology states along with what a witness to the document states nigh the contents and the style in which the document was prepared/authored. This is the heart of the matter and information technology is when the courtroom believes not only in the existence but also truth of contents that the certificate would be exhibited by the court.

At the stage of exhibition of the documents the court looks at ii basic aspects, ane the beingness of the certificate and secondly the proof of contents being sufficiently deposed to by a witness having requisite knowledge of the contents thereof. On being satisfied of both these criteria the certificate in question volition be exhibited. At the stage of marking or exhibiting documents the truth of what is stated in the document is not considered and is left open to final evaluation at the trial after cross-examination is conducted and the entire testimony of the witness on the document is weighed. It is then that the court concludes the certificate speaks the truth or not and decides what weightage is to be given to it for arriving at a terminal decision in the matter.

Objections to exhibition of documents are of 2 bones types and are indicated in the admission and denial argument exchanged between parties once a compilation is tendered to the opposite political party. At that place can be an objection/deprival of the very existence of the certificate and secondly an objection/denial of the truth of contents of the documents. Depending on the objection taken the mode of proof is required to be tailored.

PROOF OF A DOCUMENT WHEN THE CONTENTS ARE Non DISPUTED Just THE OBJECTION IS TO THE FACT THAT Information technology IS NOT AN ORIGINAL

Where the document is not disputed in terms of its being or contents simply the objection taken is that the document in the compilation is a xerox copy and not the original (since it may be lost or non traceable), the mode of proof would be in the case of a private document to pb secondary evidence which is discussed later. Yet this is merely necessary if the court so insists equally in one case the existence and contents is accepted or non denied even a copy would exist exhibited equally there is no existent objection and what the court has to consider is the truth of contents. Similarly in the case of a public document (if the courtroom so insists) the way of proving such a public document is to have as required either the actual public document produced by issuing a witness summons through court or alternately having a certified re-create or excerpt of the document[7] produced equally proof of the contents of the public document. Here in such a instance a witness is asked by fashion of a witness summons to merely produce a document in position of the public authorisation. The procedure followed normally past the courts is that the original document is taken possession of from the public authority (who attends court at a time fixed), and exhibited after he/she confirms it forms part of the official records maintained by the authority. It is important that this fact i.e. that the document produced is shown to course part of the official record maintained past the say-so which is producing it is conspicuously stated past the witness summoned for the purpose. The court after existence satisfied of this i.e. that the documents are produced from the authentic records of the public authority would then showroom the documents. This is how a public document tin can exist proved in instance there is no competition to the existence of the public document but the objection is about it not being an authenticated document.

PROOF OF A DOCUMENT WHEN THE CONTENTS AND Beingness ARE BOTH DENIED

In case of a private or public document where at that place is a denial of the existence and contents then in that case it would exist necessary to bear witness such certificate by way of the ordinary method of proof of documents and their contents. It matters not that the document is a public document. The Mumbai Loftier Court has in Om Prakash Berlia v. Unit of measurement Trust of India [8] held that even a public document requires proof in the ordinary form and it is not that a public document is proved by its mere product by a public authority where the contents are disputed. In that instance it was held: (SCC Online paras thirteen, fourteen and 26)

" 13. It volition take been noticed that the production of certified copies under the provisions of Section 63 is a means of leading secondary show. Secondary evidence can, patently, exist led just of what the document states not as to whether what the certificate states is true. Under Department 65(eastward), secondary evidence may exist given when the original is a public document inside the meaning of Department 74 and only a certified copy of the public document is admissible. Secondary evidence of a public certificate so led simply proves what the document states, no more. In other words, he who seeks to prove a public document is relieved of the obligation to produce the original. He tin produce instead a certified copy. All other requirements he must still comply with.

  1. In this context this Court'south judgment inC.H. Shah v.South.Southward. Malpathak [9] must exist noted. The Courtroom was concerned with deciding whether the original of a public document has to be proved in the same mode as whatever other certificate. A consideration of the relevant provisions of the Bear witness Act conspicuously showed the Court that the simply difference which the Act made between public and individual documents was in regard to the form of secondary evidence which is admissible viz. a certified copy, and in regard to the presumption of the genuineness of the certified copy; in all other respects no distinction was drawn by the Act between public and private documents.

                                  *                                    *                                      *

  1. In the issue, I hold that the said copy and excerpt (Exhibits 17 and 18) do not constitute, fifty-fifty prima facie, the truth or accuracy or correctness of the contents of their originals. They testify only what the contents of their originals are."

(emphasis supplied)

In case of disputed documents the starting time footstep is producing the original or primary direct evidence[10] and so leading the evidence of the person who has fabricated the original unless of form that person is no longer available. In such a instance the first step is producing the original and annexing it with the compilation of documents so leading the evidence of the person who has made the document or been party to its formation. In case the document is bachelor in original with the party proposing to prove it as for example an agreement retained in original past him, there appears no difficulty. Nevertheless, in instance the document is lost then the only mode is to lead secondary evidence of the aforementioned through a copy fabricated in accordance with Sections 63 and 65 of the Act. However in the case for instance of a letter which is written by Mr. A to Mr. B which is sought to be proved past Mr. A, offset that letter in original volition have to be produced. This can be washed by Mr. A issuing a find to produce to Mr. B because obviously having written the letter to Mr. B the letter would not remain with him. In response if Mr. B disputes that the letter was even received past him one would have to prove that the letter was duly received by Mr. B past giving evidence of proof of delivery by registered post Ad or evidence of the fact that Mr. B had responded to the letter of the alphabet or had referred to that alphabetic character in another later of correspondence or information technology was paw delivered. In such a example then appropriate secondary evidence would have to be led while annexing to the compilation instead of an original a copy which conforms with the requirements of Section 63 of the Act. In both the above cases what is achieved is only the first stage of obtaining the requisite certificate and making information technology a function of the compilation relied on. In both cases the only thing proved past the above process is the existence of the document.

However for exhibition of the document information technology is necessary to depose to the truth of contents of the document i.e. what is said in the agreement or what was written in the letter is truthful and correct.

In both the cases what would exist necessary is to prove the contents of the document because what is important is not that something is actually stated in the document but whether what is stated in the document is correct. That tin only be proved by somebody who knows nigh the document itself or who was a party to making the document or had verified the document or approved it or signed it with knowledge of its contents. This is because evidence must be directly primary evidence nether Sections 60 to 62 of the Act.

The side by side step after the production of the certificate in original or as a copy (secondary evidence) in the compilation of documents is to atomic number 82 appropriate evidence of the truth of the contents of the document sought to be proved. That needs to be washed in the aforesaid example by the evidence of a person (who was a party to or had been intricately involved with or drafted/gave instructions to make the agreement or letter of the alphabet) stating then in the witness box or in an affidavit of examination- in- master nearly these facts. It is not plenty to but depose that the letter of the alphabet or agreement is signed by the witness, he must also depose to some particulars of the letter of the alphabet or understanding showing he is personally aware about what is mentioned therein. As an instance if Mr. A only deposes that he signed the alphabetic character but that information technology was written past somebody else and he had not verified its contents then the letter doesn't stand proved because all that Mr A is able to exercise and say is that he signed such a alphabetic character. This only proves his signature and at best the existence of the aforementioned. What is crucial is the contents of the letter and that can only be proved by the person who authored the letter on the basis of knowing the facts stated in the alphabetic character. Therefore what is examined by the court and what must be shown if the document is sought to be proved sufficiently for exhibition is to give direct testify under Section 60 of the Act by the person who is aware of the facts of the case. The person who gives evidence must not just requite direct bear witness but he must besides take the necessary knowledge about what is stated in the document which he is trying to prove. This is considering what is necessary is that evidence cannot be hearsay evidence. I volition presently deal with this. To bear witness the contents of a document what is needed is to show past direct evidence of the person concerned with the transaction (for public and individual documents) the actual facts stated in the document. A reading of the evidence must prove that the witness has personal noesis of what the contents of the alphabetic character or agreement talk of and can depose sufficiently thereon. In instance the testify shows the witness attempting to prove the document is not aware of the contents and another person is aware of information technology the document volition not be exhibited till that other person has deposed on the contents of the document. Information technology is only one time this is done that the document can exist stated to be proved sufficiently for exhibition. Care must be taken to run into that someone who can vouchsafe for the contents must depose to the documents.  The Supreme court in Narbada Devi Gupta v. Birendra Kumar Jaiswal [ 11] has held: (SCC p. 751)

" 16…. The legal position is non in dispute that mere production and marking of a document as exhibit past the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for t he truth of the facts in event" …"

(emphasis supplied)

Ane of the best and most instructive cases on proof of documents is that of Madholal Sindhu v. Asian Assurance Co. Ltd .[12] It is therein held that information technology is not sufficient to simply show that somebody signed a document and the witness could show or identify the signature, what is required is to bear witness that the person who signed the certificate was aware of the document and its contents and the transaction. In that case it was held as follows: (SCC Online paras 4-half-dozen, 8 & 9)

"4.  Mr. Somjee argued that under the provisions of the Evidence Act all facts except the contents of documents could be proved by oral evidence, that so far as the contents of documents are concerned, they could exist proved either past master or secondary show, that the primary evidence of the documents meant the documents themselves produced earlier the court, and that if the documents were declared to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document every bit was in that person'south handwriting demand be proved to be in his handwriting. He, therefore, urged that the said diverse documents which he sought to prove before the courtroom need simply exist proved to be in the handwriting of the persons making the same and if he succeeded in doing and so by calling the evidence of persons acquainted with the handwriting of the persons who signed or wrote out the said several documents, he was entitled to put them in and argued that the contents of the said documents were likewise proved by him.

  1. This suggestion sounded to me a novel 1. I had in fact never heard any such statement earlier. Section 67, Evidence Act but permitted the proof of the signature or handwriting of the person signing or writing the document to be given and considered it to be sufficient in those cases where the consequence between the parties was whether a document was signed or written wholly or in part by that person. Information technology did not go so far every bit to say that even if information technology was proved that the signature or the handwriting of so much of the document every bit was alleged to exist in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No incertitude the proof insofar as it was sought to exist given in the evidence of Balkrishna Bhagwan Deshmukh of the signature or handwriting of the said various documents could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas; but the affair could rest there and would bear the plaintiff no further.
  2. Information technology certainly could not prove that the contents of those various documents which were thus proved to have been signed or written by Deshpande, Paranjape or Jamnadas were right, and unless the plaintiff succeeded in proving the definiteness of the contents of those various documents, he would not accelerate whatever pace towards proving his case. Mr. Taraporewalla for the bank and Jamnadas supported Mr. Somjee in his submission. He submitted that once the signatures were proved the messages as a whole were proved, though the Court might say that the contents thereof were not proved in the sense that they were true. He submitted that the Court could admit those documents in evidence with that reservation, a reservation which to my mind went to the root of the whole matter and deprived the documents of all value whatever even if they might be admitted past the Court in evidence.

                         *                                *                                 *

  1. Mr. Setalvad on the strength of this authority urged that the documents which were sought to exist tendered by Mr. Somjee through this witness Balkrishna Bhagwan Deshmukh could not be admitted in evidence without calling the signatory or the author thereof who could be the only persons competent to depose to the truth of contents of the said diverse documents. Mr. Somjee replied urging that the usual mode of proving documents was by calling the writer or by the testimony of the persons who were acquainted with the handwriting of the persons in question, and he was thus entitled to prove the various documents which he sought to tender in bear witness through this witness Balkrishna Bhagwan Deshmukh who was acquainted with the signatures or handwriting of the persons who signed or wrote the said various documents.
  2. As I accept already observed information technology was futile for Mr. Somjee to but prove the signatures or the handwriting of the persons who signed or wrote the various documents without calling the said persons who were the simply persons who could depose to the correctness of the contents of those various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various documents, was not the only result before me. It that had been the only result, the proof of the signatures or the handwriting of Deshpande Paranjape or Jamnadas would have been enough. What was in result, withal, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the contents of those various documents were correct. This certainly could non exist proved by Balkrishna Bhagwan Deshmukh who had no personal knowledge whatever about the contents of those various documents. Information technology would take served no purpose whatever to admit those documents in evidence with the reservation as suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in — '11 Bom HCR 242 [thirteen] at p. 246 (A)', and I accordingly declined to admit in prove the said diverse documents in spite of Balkrishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or were in the handwriting of Deshpande, Paranjape or Jamnadas. (The rest of the judgment is not material to the report.)"

The principles in Madholal case [14] stand the test of time fifty-fifty today and this judgement has even been referred to in a later on sentence of the Mumbai Loftier Court Sir Mohammed Yusuf v.  D [xv] where it is quoted with blessing. The following passages are relevant:

"13. Mr. Peerbhoy contended that the entire certificate (Ext. 28) could not be admitted in evidence inasmuch equally D had but proved the signature beneath the document. The Tribunal gave a ruling stating that in their opinion proof of the signature was not proof of the contents of the certificate, which bears the signature. They added that "it would exist open to Mr. Peerbhoy to fence that despite the admission of the document on tape what was proved was that the certificate bore the signature of Abreo and not that their contents were true". In their written report, the tribunal have stated that proof of the signature does not corporeality to proof of the contents of Ext. 28. Nor did it mean that even if Abreo had received that copy alphabetic character, he showed it to Abdul Rahman at whatever time. According to the Bar Quango Tribunal, the evidentiary value of Ext. 28, fifty-fifty if it is held proved, was almost goose egg. As pointed out in a higher place, the manner of proving Ext. 28 that was initially undertaken by D was to identify the signature of Abreo as a person who was acquainted with Abreo'south handwriting (vide Department 47 of the Evidence Act). The ruling given by the tribunal may hold expert and then far as the question of the proof of the contents of Ext. 28 is concerned, (we will talk over this question presently at some length), if the only mode of proof adopted past D was to place the signature of Abreo. It certainly does non apply to the second mode of proof which D sought to prefer, for the first time, in his further exam-in-principal earlier the Bar Council Tribunal by proverb that Abreo put his signature below Ext. 28 in his presence, for this amounts to proof of the execution of the certificate. We are not, nonetheless, disposed to take the improved version of D, when he tried to say, for the first time before the Tribunal, that he had seen Abreo putting his signature below Ext. 28. The style of proof that D adopted in the first instance fell within the purview of Section 47 of the Evidence Human action, that is to say, it amounted to his opinion about the signature of Abreo on the basis of his acquaintance with the latter's paw-writing. The Bar Council Tribunal had probably in their listen the determination of Bhagwati, J. (as he and so was) in Madholal Sindhu 5. Asian Balls Co.[xvi] The Advocate Full general has strongly relied upon this judgment and contended that proof of the signature below the document does non amount to proof of the contents of the document. In that case an attempt was fabricated to bear witness through the sub-accountant in the head part of the Banking concern several documents consisting of messages and documents executed by Jamnadas in favour of the bank and also the resolutions of the executive commission of the bank and the letters addressed past the banking company to Nissim past proving the handwriting in which all the documents purported to have been written. Bhagwati, J. characterised this attempt "every bit an attempt to show the handwriting of these diverse documents without calling in evidence the persons who had written the aforementioned or who were acquainted with the contents thereof so that they might non be subjected to cross-test at the hands of the counsel for the official Assignee. The witnesses who could have proved those documents and the contents thereof would accept been Deshpande, the managing manager of the bank. Paranjape the Secretarial assistant of the bank, Jamnadas and Nissim". Bhagwati, J. referred to Department 67 of the Evidence Human action and observed:

"Section 67 of the Evidence Act but permits the proof of the signature or handwriting of the person signing or writing the certificate to be given and considers it to be sufficient in those cases where the issue between the parties is whether a certificate was signed or written wholly or in part by that person. The department does not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document equally was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubtfulness the proof insofar as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature of handwriting of the said diverse documents could accept established that those documents were signed or writen in the handwriting of Deshpande, Paranjape or Jamnadas; but the matter could rest in that location and would deport the plaintiff no further."

  1. From the facts as they announced from the judgment, it appears to us that the prove given by Deshmukh in that case amounted to proving the handwriting of the persons concerned under Section 47 of the Prove Human action. We are inclined to the view that the proof offered by the evidence of Deshmukh was proof of the handwriting by a person acquainted with that handwriting and, therefore, amounted to stance evidence under Section 47 of the Evidence Human action. What is important to note is that Bhagwati, J. has gone to the length of holding that proof of the signature or the handwriting under Section 67 of the Evidence Act does not amount to proof of the contents of that certificate.

                                *                         *                                   *

  1. Section 67 does not prescribe whatsoever particular mode of proof. It lays downward no new rule any as to the kind of proof that must be given. The section merely states with reference to the deeds what is the universal rule in all cases viz. that a person who makes an allegation must prove information technology. The question that arose earlier the Supreme Court inMobarik Ali instance [17] was, whether the authorship of the certificate tin exist proved without adducing evidence in proof of the signature of the person concerned. In that example, the prosecution relied upon a number of letters and these letters fell under 2 categories; (1) Letters from the appellant (accused) either to Jessawala or to the complainant and (ii) Messages to the appellant from Jassawalla or the complainant. Most of the messages from the appellant relied upon bore what purported to be his signatures. A few of them were admitted by the appellant. There were too a few letters without signatures. The complainant and Jassawalla spoke to the signatures on the other messages. The objection raised on behalf of the appellant was that neither of them had actually seen the appellant writing any of the letters nor were they shown to take such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of these signatures. The trial Judges too equally the learned Judges of the High Courtroom had found, that there were sufficient number of admitted or proved letters which might well enable Jassawalla and the complainant to place the signature of the appellant, in the disputed letters. They also laid stress substantially on the contents of the various letters, in the context of the other letters and telegrams to which they purported to be replies and which formed the chain of correspondence every bit indicating the genuineness of the disputed messages. The learned counsel objected to this approach on a question of proof. Their Lordships of the Supreme Court observed:

"We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact the bear witness relating thereto may be direct, or circumstantial. It may consist of direct evidence of a person who saw the certificate being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by 1 of the modes provided in Sections 45 and 47 of the Evidence Deed. It may also exist proved past internal evidence afforded by the contents of the document. This final mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the certificate, be it either a letter or a telegram would exist in a reasonably expert position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, also his knowledge of the subject area-matter of the concatenation of correspondence, to speak to its authorship. In an appropriate case, the Court may also be in a position to judge whether the document constitutes a genuine link in the concatenation of correspondence and thus to decide its authorship. We are unable, therefore, to say that the arroyo adopted by the Courts below in arriving at the conclusion that the letters are 18-carat is open to any serious legal objection. The question, if any, tin can only exist as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That, however, is a matter which nosotros cannot permit to be canvassed before us".

  1. We are unable to sympathise how the above observations in any way amount to modification of the view taken by Bhagwati, J. inMadholal example [18]nor practice we capeesh how they aid Mr. Gupte in the argument that he is advancing. Mr. Gupte in item, relied upon the following sentences occurring in the to a higher place passage:

"The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of whatever other fact. The evidence relating thereto may exist direct or circumstantial. It may consist of directly bear witness of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Evidence Act. It may also be proved by internal evidence afforded by the contents of the document…"

  1. The issue nether consideration in that instance was whether the internal show afforded past the contents of the document amounted to the proof of the authorship of the certificate and, therefore, their Lordships held that the evidence of the recipient of the document would be material to plant the authorship of the certificate. This was the real decision that was given by the Supreme Court inMobarik Ali case [19]. Even the general observations viz. "It (proof) may consist of direct evidence of a person who saw the document being written or the signature being affixed. Information technology may be proof of the handwriting of the contents or of the signature by ane of the modes provided in Sections 45 and 47 of the Evidence Human activity" are not of much assist to Mr. Gupte. As pointed out higher up, at the initial stage D tried to resort to the way of proving spoken of in Section 47 of the Testify Human action but at a latter stage, shifted the basis and tried to give straight testify of the execution of the document. It is true that proof of the signature or of the handwriting past one acquainted with the handwriting is a recognised mode of proof under Section 47 of the Bear witness Act. Therefore, insofar as D says that he recognised the signature of Abreo, the alphabetic character's signature tin can be taken to have been proved under Department 47 of the Act. But the proof of the signature on the basis of stance prove, however, is not proof of the handwriting of the certificate. Mr. Gupte pointed out that the torso of the certificate every bit Ex. 28 is typewritten. Therefore, there is no question of proving the writing of that certificate. At the aforementioned fourth dimension, it must not exist forgotten that the figure and messages '1st' are written in hand and in pencil. D has non attempted to place the figure and letters. The whole document, therefore, cannot be said to have been fifty-fifty formally proved. Autonomously from this aspect of the matter, it is clear to u.s. that the decision in Mobarik Ali case [20] does not affect the decision given past Bhagwati, J. viz., that the proof of the certificate does non amount to proof of the contents thereof. The just question that arose inMobarik Ali instance related to the formal proof of the certificate and, therefore, Their Lordships of the Supreme Court held that the letters and telegrams could be said to take been formally proved by reason of internal show provided by the documents and the positive evidence given by the recipient of those documents. Once the messages and telegrams were held proved, the farther question about the proof of the contents did not arise inMobarik Ali case [21], because the author of the documents was accused himself and the statements contained therein would corporeality to his admissions. In our view, therefore, the decision of Bhagwati, J. is still good law.
  2. The reason on which the decision of Bhagwati, J. is based is non far to seek. The bear witness of the contents contained in the certificate is hearsay evidence unless the author thereof is examined before the Courtroom. Nosotros, therefore, agree that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well recognised dominion that hearsay evidence cannot be admitted.

                                                                                                                        (emphasis supplied)

Information technology is therefore necessary in the case of disputed documents to therefore testify the contents of the documents through the show of persons/witnesses who take authored the documents or are parties to it or are aware of the facts personally stated therein.

Another reason for post-obit the practice of having a witness with sufficient personal knowledge deposing virtually the documents sought to be proved is that even if the documents are exhibited the job is non yet done. This is because the person deposing will also be field of study to cantankerous-examination and in case it is found during the cross-examination that the person giving evidence about the document knows nothing almost how it was made, where the details provided in the document are obtained from, what are the back up or supporting documents etc. and so in that case the weightage to exist given to such document even though exhibited in the beginning instance would be severely diminished.

PROOF OF A DOCUMENTS THE ORIGINALS OF WHICH ARE LOST OR UNTRACEABLE OR IN POSSESSION OF AN Agin PARTY

Here the first thing which needs to be established is that the document is lost and despite diligent search the same is non bachelor. This will take to be proved and specifically averred in evidence. Secondary evidence cannot be immune in absence of this proof of loss of the document. The Supreme Court in Benga Behera five. Braja Kishore Nanda [22] held that:(SCC pp. 737-38)

"29.  Some other vital aspect of the matter cannot as well be ignored. Respondent 1 in his evidence accepted that he had obtained the registered volition from the function of the Sub-Registrar upon presenting "the ticket" on 30-i-1982. After receipt of the volition, he had shown it to Sarajumani Dasi. He did not say how the will was lost, specially when he had not only shown the original volition to the testatrix but also had consulted a lawyer in relation thereto. No information was lodged near the missing of the document before any authority. Fifty-fifty the approximate point of time the volition was lost, was not stated. In his cross-examination, he stated, "I cannot say where and how the original volition was lost."

  1. Loss of the original will was, thus, non satisfactorily proved.
  2. A document upon which a title is based is required to be proved past primary prove, and secondary show may exist given nether Section 65(c) of the Evidence Act. The said clause of Section 65 provides as nether:

"65. (c) when the original has been destroyed or lost, or when the party offering testify of its contents cannot, for any other reason not arising from his own default or neglect, produce information technology in reasonable fourth dimension;"

Loss of the original, therefore, was required to be proved.

  1. In a example of this nature, information technology was obligatory on the office of the outset respondent to establish the loss of the original will across all reasonable dubiousness. His testimony in that behalf remained uncorroborated."

In case a certificate is in possession of the opposing party the proper practice to be followed will be to requite a notice to produce the certificate to such party in possession of the certificate and merely subsequently the party refuses to provide/produce the document can secondary show exist resorted to[23].

Thereafter the mode of proof will be the same equally for other disputed documents. Additionally appropriate evidence about how the copy which is secondary evidence was obtained and made from the original will besides accept to be led. In other words evidence of the way in which the copy is fabricated will take to exist led in accordance with the way set up out in Department 63 of the Act. As an example if a letter sought to be proved is lost testify would take to be given start of the efforts made to locate the aforementioned unsuccessfully and then of the style in which the copy now relied upon in the compilation was obtained or made and the process by which information technology was made e.g. photocopy. The necessary averment of the witness apart from the factum of his failure despite diligent search to locate the original volition have to be to the effect that at the relevant time the original document was available and a re-create was fabricated from the original and the copy in the compilation was compared by him with the original and constitute to be an accurate reproduction of the original document.

The next stage is for the witness deposing to be able to withstand cross-examination past answering relevant questions relating to document. Take the following case (in a dispute on electricity consumption) and assume there is an electric bill, a disputed document exhibited since the public authorization has produced it from its record maintained past it in the normal course of business. Since in that location is a dispute about consumption of units even though the bill itself in original is produced all that is proved by product is that such a bill was made past the public authority and such and such number of units were consumed as stated therein. Nevertheless what needs to exist seen is whether there is a correct recording of the consumption of units in the public certificate that is the nib. Mere product of the document is non enough what is needed in such a case further is for some person to requite evidence of the public document to the extent that the document is substantiated with supporting documents such as meter reading cards and supporting data maintained in the role of the authority. In such a case if the witnesses states that the beak was prepared by him on the footing of information cards maintained showing the consumption from month to month and he had verified the consumption from month to month then in that case if the data cards showing the consumption are also produced the contents of the bill will stand proved, of course subject area to cross-examination not dislodging the correctness of the consumption shown in the document. Therefore what is needed apart from successful exhibition of the document is for a witness to stand the exam of stringent cantankerous-exam. It is not merely somebody stepping into the box and saying the contents are true and correct that person must withstand cross-examination. It is only subsequently that person has withstood the exam of cross-test that the document volition exist deemed to exist accepted by the court sufficient to sign a judgement in favour of the party challenge under the document. Mere exhibition of a document does non dispense with the proof of the truth of its contents. The Supreme Court inNarbada Devi Gupta v. Birendra Kumar Jaiswal [24]held: (SCC p. 751)

"16.  Reliance is heavily placed on behalf of the appellant on Ramji Dayawala & Sons (P) Ltd. [25]The legal position is not in dispute that mere production and marking of a document equally exhibit by the court cannot exist held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "prove of those persons who can vouchsafe for the truth of the facts in issue". The state of affairs is, all the same, unlike where the documents are produced, they are admitted past the contrary party, signatures on them are too admitted and they are marked thereafter equally exhibits by the court."

DOCUMENTS thirty YEARS' OLD

There are too documents which are of such one-time vintage that it is very difficult and sometimes impossible to produce the maker of the document and in this case the provisions of Section 90 of the Act come to the rescue when the document is more 30 years' one-time. Notwithstanding, this dominion considering the fact that almost cases coming up for trial are 30 years after the transactions cannot be the sole basis for admitting documents and in such cases the court would look at the surrounding circumstances earlier exhibiting the certificate. This means the court would look equally if there, is for example, whatsoever correspondence contemporaneously that supports what is stated in the document sought to be proved. If the document is a alphabetic character, has there been any response to it disputing the contents of the letter, the court may also take into consideration what is stated nigh the letter of the alphabet in the plaint or in a written statement. Exhibition of such documents which do not have persons who can depose to them is extremely difficult and even if they are exhibited (rarely) the evidentiary value is express unless its contents are admitted in some other parallel documents. The section does not dispense with proof of the contents. The judgement of the Supreme Court in Gangamma five. Shivalingaiah [26] elucidates the position: (SCC p. 360)

"6.  Nosotros agree with the learned counsel. The purported substantial question of law was formulated by the High Court on a incorrect premise. Section 90 of the Evidence Act has been misconstrued and misinterpreted by the High Courtroom. Section 90 of the Bear witness Act reads as nether:

"90. Presumption as to documents xxx years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any detail person, is in that person'south handwriting, and, in the case of a document executed or attested, that it was duly executed and attested past the persons by whom it purports to be executed and attested."

  1. A bare perusal of the aforementioned provision would clearly go to show that in terms thereof merely a presumption is raised to the effect that signature and every other office of such document, which purports to be in the handwriting of whatsoever particular person, is in that person's handwriting and in instance a document is executed or attested, the aforementioned was executed and attested past the persons by whom it purports to be executed and attested.
  2. Department 90 of the Evidence Act nowhere provides that in terms thereof the authenticity of the recitals contained in whatever document is presumed to exist correct. The Loftier Court, therefore, committed a manifest error of law in interpreting the provision of Section 90 of the Evidence Act and, thus, fell into an error in formulating the substantial question of police. As the purported substantial question of law was formulated on a wrong reading of Department 90 of the Evidence Act, the impugned judgment cannot be sustained. We may furthermore notice that even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, does not lead to the decision that the recitals made therein are correct, and subject area to the statutory provisions contained in Sections 91 and 92 of the Show Human activity, it is open to the parties to heighten a plea contra thereto."

It is also to be noted that the presumption of Section 90 of the Deed does non apply to copies of documents as held in Tilak Chand Kureel 5. Bhim Raj [27] . The relevant passage is equally under:

"4. On behalf of the appellant it was contended that Exts. ii, eighteen and xix were not admissible in evidence and the High Courtroom was wrong in relying upon these documents. It was said that the presumption under Section 90 of the Evidence Act was not applicative as copies were produced and not the original documents. In our opinion this statement is well-founded. InBasant five.Brijraj [28] information technology was held by the Privy Council that the presumption enacted in Department ninety of the Evidence Act tin be applied only with regard to original documents and not copies thereof. The same view was taken past this Court inHarihar Prasad Singh five. Mst of Munshi Nath Prasada.[29] In view of the legal position it is manifest that the Loftier Court ought not to take taken into consideration Exts. 2, eighteen and 19."

PERSONAL KNOWLEDGE

The last event which needs to be addressed to testify documents contents through a witness pertains to the witness having straight knowledge and giving directly evidence rather than a witness relying upon something which he claims he heard. The rule of inadmissibility of hearsay evidence kicks in. Show needs to exist testify of the person who is involved in and familiar with the transaction. In this behalf a recent judgement considering the constabulary on the event was delivered by the  Bombay High Courtroom (Thousand. S. Patel, J.) in Harish Loyalka v. Dileep Nevatia [30]. It is inter alia held therein that the provisions of Order 18 Rule four of the Code of Civil Procedure, 1908 ("CPC") require that the "exam-in-master" shall be on affirmation. This means that the affirmation in lieu of test-in-chief can contain, and contain only, such material as is properly admissible in examination-in-chief, in a manner no dissimilar than if the witness was in the witness box and his direct testify was beingness taken by his abet. An affidavit that contains arguments and submissions is neither an affidavit within the meaning of Order 19 Dominion iii CPC, nor an affidavit in lieu of exam-in-chief within the pregnant of CPC Order 18 Dominion 4.

In that judgment information technology was also held:

"thirteen. Every bit Mr. Joshi points out, under Department 5  of the Prove Act, evidence may be given in a suit of every fact in result or of a relevant fact, and of no other. That section is specific and unambiguous. Cloth that is ex facie entirely irrelevant, hearsay, and certainly material that is in the nature of submissions and arguments must be excluded."

To sum up the aforesaid are some of the important principles and aspects of law to bear in mind when preparing for a hearing for exhibiting and proving documents.

* Abet, High Court, Bombay. Assisted by Sheetal Parkash, Arjun Prabhu and Mayur Agarwal

[1] Sections 74 & 75, Evidence Human activity

[2] Divers in Section 74 of Evidence Act

[3] Sections 76 & 77, Evidence Human activity

[iv] Section 35, Evidence Act

[5] Department xc, Evidence Act

[6] Department 63, Evidence Act

[7] Under Department 77 of the Evidence Act

[8] 1982 SCC OnLine Bom 148

[9] 1971 SCC OnLine Bom 104

[x] Sections 60 to 62 Evidence Act

[11](2003) 8 SCC 745

[12] 1945 SCC OnLine Bom 44

[thirteen] Reg 5. Jora Hasji

[14] Madholal Sindhu 5. Asian Assurance Co. Ltd ., 1945 SCC OnLine Bom 44

[fifteen] 1961 SCC OnLine Bom v

[16] 1945 SCC OnLine Bom 44

[17] Mobarik Ali Ahmed 5. State of Bombay, 1958 SCR 328

[18] 1945 SCC OnLine Bom 44

[19] 1958 SCR 328

[20] Ibid.

[21] Ibid.

[22]  (2007) 9 SCC 728

[23] Sections 65 and 66, Evidence Act

[24] (2003) 8 SCC 745

[25] Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC fourscore

[26] (2005) nine SCC 359

[27] (1969) 3 SCC 367

[28] 1935 SCC OnLine PC 21

[29] 1956 SCR I at p. nine

[30] 2014 SCC OnLine Bom 1640