introduction : this subject plays very important and vital role in our
TRANSCRIPT
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Introduction :
This subject plays very important and vital role in our day to
day court proceedings. Oftenly the debate takes place between the parties
while exhibiting and admitting any document in evidence. In this regard
we are well guided by the relevant provisions of Evidence Act.
The Evidence includes, besides oral account of facts, all
documents produced for inspection of court. At the outset let us see what is
Document.
What is Document:
According to Section 3 of the Evidence Act, “document” means any
matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means
intended to be used, or which may be used, for the purpose of recording
that matter. A writing, printing, lithograph, photograph, map, a
plan, an inscription on a metal plate or a stone, a plaque, a caricature etc.
are documents.
At this stage we must bear in mind another principle i.e. “Party
must produce the best evidence in possession or power of the party”.
Basically the best evidence is primary evidence i.e the document itself.
When we say document itself, it envisage ORIGINAL document which is
called Primary Evidence.
Primary Evidence: Primary evidence is the best available substantiation of the
existence of an object or fact because it is the actual document or piece of
evidence. It differs from secondary evidence, which is a copy of, or,
substitute for, the original. If primary evidence is available to a party, that
person must offer it as evidence. When, however, primary evidence is
unavailable – for example, through loss or destruction – through no fault
of the party, he may present a reliable substitute for it, once it's
unavailability is sufficiently established.
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Secondary Evidence:-
Secondary evidence is the evidence that has been reproduced
from an original document or substituted for an original item. For
example, a photocopy of a document or photograph would be considered
secondary evidence. Court prefer original, or primary, evidence. They try to
avoid using secondary evidence wherever possible. This approach is called
the best evidence rule.
Document is required to be proved in accordance with the
provisions of the Evidence Act. Mere production and marking of the
document as an exhibit is not enough. Execution of documents is to be
proved by admissible evidence. The admission of documents under Order
13 Rule 4 Civil Procedure Code does not bind the parties and unproved
documents cannot be regarded as proved nor do they become
evidence in the case without formal proof. The marking of a
document as an exhibit, be it in any manner whatsoever either by use of
alphabets or by use of numbers, is only for the purpose of identification.
Endorsement of an exhibit number on a document has no relation with its
proof. Neither the marking of an exhibit number can be postponed till the
document has been held proved; nor the document can be held to have
been proved merely because it has been marked as an exhibit.
The Hon'ble Bombay High Court has held in case of Bama
Kathari Patil V. Rohidas Arjun Madhavi [2004 (2) Mh.L.J.752]
that a document is required to be proved in accordance with the provisions
of the Evidence Act and merely for administrative convenience of
locating or identifying the document, it is given an exhibit number by the
Court. Exhibiting a document has nothing to do with its proof though as a
matter of convenience only the proved document is exhibited. If a
document is duly proved, but mistakenly or otherwise is not exhibited, still
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it can be read in evidence.
Again, even if a document is marked as an exhibit without its proof,
it can be challenged at the time of arguments and even in appeal or
revision. The Hon'ble Apex Court in case of Roman Catholic Mission
Vs. State of Madras, reported in AIR 1966 SC 1457, which was
followed in case of R.V.E. Venkatchala Gounder Vs. Aralmigu
Viswesaraswami & V.A. Temple & another, reported in AIR
2003 SC 4548 has held that, a document not admissible in evidence,
though brought on record, has to be excluded from consideration. In
R.V.E. Venkatchala’s case (supra) the Apex Court has categorized
objections raised to the documents into two classes, i.e. (i) the document
which is sought to be proved, is itself inadmissible in evidence; and (ii)
where the objection does not dispute the admissibility of the document in
evidence, but is directed towards the mode of proof alleging the same to be
irregular or insufficient. In the first case, merely because a document has
been marked as 'an exhibit', an objection as to its admissibility is not
excluded and is available to be raised even at a later stage or even in appeal
or revision. In the latter case, the objection should be taken before the
evidence is tendered and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not have been
admitted in evidence or the mode adopted for proving the document is
irregular cannot be allowed to be raised at any stage subsequent to the
marking of the document as an exhibit. The later proposition is a rule of
fair play. The full bench of our Hon'ble Bombay High Court has also held
the same view in case of Mr. Hemendra Rasiklal Ghia Vs. Subodh
Mody, reported in a Writ Petiton No. 623 of 2005, decided on 16
October 2008. This position is by now has become a settled rule and in
catena of judgments this fact is reiterated by the Honourable Apex court as
in Sudhir Engineerings Vs.Niteo Roadways Ltd.
Kinds of documents :
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The evidence Act approves two types of documents viz. Public
document and Private document. So far public documents, they are
described and listed U/s. 74 of the Evidence Act. Excluding the aforesaid
public documents all other documents are private documents.
Documents forming the acts or records of the act of the sovereign
authority, namely, the parliament and the legislative assemblies, or of the
official bodies and tribunals, and of public officers, legislative, judicial and
executive, of any pert of India or of the commonwealth, or of a foreign
country, are public documents.
Private documents which are registered in the public offices also
become public documents.
A private document, such as, for example, an application for a
licence, which is filed in government office and is produced there from
does not become a public document so as to dispense with the necessity of
proof by primary evidence. A post-mortem report is not public
document so as to amount to proof of identity of the dead without
producing the doctor in evidence. Section 75 of the Act deals with the
Private Documents and lay down that all other documents are private.
Stage of proving documents :
Any document filed by either party passes through
three stages before it is held proved or disproved. These are :
First stage : when the documents are filed by either party in the Court;
these documents though on file, do not become part of the
judicial record;
Second stage: when the documents are tendered or produced in
evidence by a party and the Court admits the documents in evidence. A
document admitted in evidence becomes a part of the judicial record of the
case and constitutes evidence.
Third stage: the documents which are held 'proved, not proved
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or disproved' when the Court is called upon to apply its judicial mind by
reference to Section 3 of the Evidence Act. Usually this stage arrives the
final hearing of the suit or proceeding.
Order 13 Rule 4 sub-rule (1) of the Civil Procedure Code provides as
under :-
4.( 1 ) ' Subject to the provisions of the next following sub-rule,
there shall be endorsed on every document which has been
admitted in evidence in the suit the following particulars,
namely :- (a) the number and title of the suit, (h) the name of the
person produced the documents, (c) the date on which it was
produced, and, (d) a statement of its having been so admitted; and
the endorsement shall be signed or initialed by the Judge.
"Provided that where the Court is satisfied that the 'document,
not endorsed in the manner laid down in the above rule, was in
fact admitted in evidence, it shall treat the document as having
been properly admitted in evidence unless non-compliance with
this rule has resulted in miscarriage of justice."
In Baldeo Sahai VS. Ram Chander & Ors. AIR 1931 Lahore 546 it is
observed that:-
"There are two stages relating to documents. One is the stage when all
the documents on which the parties rely are filed by them in Court. The
next stage is when the documents proved and formally tendered in
evidence. It is at this later stage that, the Court has to decide whether they
should be admitted or rejected. If they are admitted and proved then the
seal of the Court is put on them giving certain details laid down by law,
otherwise the documents are resumed to the party who produced them with
an endorsement thereon to that effect." A reading of the report shows that
it was the practice of the Court to endorse the documents soon on their
filing which practice was deprecated and hence slopped. The word "proved"
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has been used by the Division Bench in the sense of 'proposed to be proved'
as is clear from its having been used Along with the word 'tendered' or
"admitted" in evidence. The word proved has been loosely used for
describing the stage after fling of the documents, when the Court would
decide only whether they should be admitted or rejected. The Division
Bench cannot be read as holding that the document is not to be endorsed
with an Exhibit number unless and until proved. As stated hereinabove, the
stages of tendering/admitting/rejecting in evidence and holding a
document proved - are two distinct and different stages, not one. They are
respectively the second and third stages.
Admission of a document in evidence is not to be confused with proof
of a document.
When the Court is called upon to examine the admissibility of a
document it concentrates only on the document. When called upon to form
a judicial opinion whether a document has been proved, disproved or not
proved the Court would look not at the document alone or only at the
statement of the witness standing in the box; it would take into
consideration probabilities of the case as emerging from the whole record.
It could not have been intendment of any law, rule or practice direction to
expect the Court applying its judicial mind to the entire record of the case,
each lime a document was placed before it for being exhibited and form an
opinion if it was proved before marking it as an exhibit.
This makes the position of law clear. Any practise contrary to
the above said statement of law has no sanctity and cannot be permitted to
prevail.
Mode of proving documents :
So far mode of proving the document is considered we have to
refer to Section 67 of the Act. When the document is alleged to be signed or
to have been written wholly or in part by any person, the signature or the
handwriting of so much of the document as is alleged to be in that person's
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handwriting must be proved to be in his handwriting. The best evidence is
that of a person who executed it. A document can be proved by attesting
witness when it is lawfully required to be attested. A document can also be
proved by examining the scribe who has written the document. If the
attesting witness denies or does not recollect, it's execution may be proved
by other evidence. (Sec. 71). If document not required by law to be attested
it may be proved as if it is not attested. ( Section 72).
1. By the admission of the party who is the executant under S.18.
For instance, if “A” alleges in a suit that a promissory note was
written by “B” and B admits that the handwriting or signature on the
promissory note was his, that will be sufficient proof of the execution.
Though, under S.17 , an admission can be oral or written, under S.22 an
oral admission as to the contents of the document is not permitted unless
(a) the party proving the document shows that he is entitled to prove them
by secondary evidence or (b) the genuineness of the document is in
question. Similarly, S.22-A provides: “Oral admissions as to the contents of
electronic records are not relevant, unless the genuineness of the electronic
record produced is in question.” Hence, in the above example, if B denies
that the document was written or signed by him, A cannot prove the
contents of the document by the oral admission by B. Section 65 (b)
requires that the admission must be a written one. Under S.70, admission
by the party of the execution by himself, dispenses with the proof of its
attestation. Under S.58 “Facts admitted need not be proved”, but the Court
in its discretion may require that the facts admitted be proved otherwise
than by such admission at the proceeding.
2. By person acquainted with handwriting:
Under S.47, “When the Court has to form an opinion as to the person
by whom any document was written or signed, the opinion of any person
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acquainted with the handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by that person, is
a relevant fact.” Under the Explanation to S.47, a person is said to be
“acquainted with the handwriting”.
i) If “he has seen that person write”. Such a person can be one who was
personally present when the document was signed or written. In
“Fakhruddin ..Vrs.Madhya Pradesh, it was held that “the evidence of
the person who has seen a person write is a witness giving direct evidence
and no other evidence would be necessary. or
ii) An attesting witness under Section 68.
iii) When he has received document purporting to be written by that person
in answer to documents written by himself or under his authority and
addressed to that person.”
Thus, if a businessman has written letters to another businessman and in
turn received replies from him, the former is said to be acquainted with the
latter's handwriting. Or
iii) “When, in the ordinary course of business, documents purporting to be
written by that person have been habitually submitted to him.” Suppose,
the office note written by a Section Officer is habitually submitted to the
Secretary of the Government Department concerned, the latter is said to be
acquainted with the former's handwriting.
3. Handwriting Expert's evidence under S.45.
4. Court's Comparison under S.73.
Mode of proving Electronic records :
For the Admissibility of electronic evidence, it must satisfy the
same rules as required for traditional documentary evidence to be admitted
into evidence as laid down by Indian Evidence Act. But most of electronic
evidence is intangible, invisible so some help/aid from technical
person/Knowledge may be required to ascertain the fact which is to be
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proved. The section 3 for , “Document” and “Proved” reflects that, the
principles of Indian Evidence Act are not changed in any way to prove the
electronic documents. Being Jorgan (technical Words) in the Information
Technology Act , some may feel that, it is difficult law to understand.
How to prove e-mail:
Section 88, 88A, 114(f) of the Evidence Act with section 26 of the
General Clause Act are relevant sections for sending and receipt of e-mail
and its proof. To admit emails into evidence, the proponent must show the
origin and integrity of emails. He must show who or what originated the
email and whether the content is complete in the form intended, free from
error or fabrication. In discovery, the proponent needs to prove that the
hard copy of the email evidence is consistent with the one in the computer
and includes all the information held in the electronic document.
Next stage follows that, before admissibility the document has to
meet the requirements of authentication or identification. This is a process
of verification that establishes that the document is what it purports to be.
i.e. that the email was made by the author indicated therein and is
unaltered except for the change in the document generated automatically
such as adding the date and time in case of email and address. The burden
is on the person adducing the data message to prove its authenticity by
adducing relevant evidence therefore that the document is what it purports
to be. Where best evidence is the evidence required, the rule of best
evidence is fulfilled upon proof of the authenticity of the electronic records
system in or by which the data was recorded or stored. In assessing the
evidential weight the court shall have regard to the reliability of the
manner in which the data message was generated, stored or
communicated; the reliability of the manner in which the authenticity of
the data message was maintained; the manner in which the originator of
the data message or electronic record was identified; and any other relevant
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factor.
The authenticity of the electronic records system such as a computer
is presumed in the absence of any evidence to the contrary where there is
evidence that the system was operating properly. Where the record is
stored by a party adverse to the production of the email or data message;
evidence is led that the record was stored in the usual and ordinary course
of business by a party who is not a party to the suit. The Act specifically
provides that it does not modify the statutory or common law rules for the
admissibility of evidence. For admissibility of electronic records, specific
criteria have been made in the Indian Evidence Act to satisfy the prime
condition of authenticity or reliability which may be strengthened by means
of new techniques of security being introduced by advancing technologies.
It also requires: a] Integrity of the data. b] Integrity of the
hardware/software c] Security of the system.
11. How to prove that, system was properly working ?
To show that the system was working properly, the evidence is
necessary to show that, record was stores in the usual and ordinary course
of business by a party (provider) who is not party to the case. If some one
challenges the accuracy of the computer evidence or electronic evidence or
interpolation then he must prove the same beyond reasonable doubt.
Recently in case of Anvar vs. Bashir (Civil Appeal No.
4226/2012 decided on 18.09.14) the Hon'ble Supreme Court
deliberated upon the procedure for proof of electronic evidence and
concluded, “An electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section 65B are
satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be
accompanied by the certificate in terms of Section 65B obtained at the time
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of taking the document, without which, the secondary evidence
pertaining to that electronic record, is inadmissible”.
Relevant Case laws :-
–Ark Shipping Co. Ltd. – Vrs- Grt Ship Management Pvt. Ltd reported in 2008(1) ARBLR 317 (Model Affidavit Section 65B)
– State- Vrs-Navjot Sandhu 2005 (11) SCC 600 (certificate under section 65B not necessary)
– State of Delhi – Vrs—Mohd Afzal and others 2003(3) 11 JCC 1669
– Commissioner of Customs Mumbai—Vrs—Ridhi Sidhi Furniture Fitting Co.2002 (144) ELT 444 (Name of sender of the email was blocked in copies supplied to the importer and the address of the person sending the quotation was not known as well)
When and How Secondary Evidence is admissible:
S. 63 Secondary evidence means and includes –
1.Certified copies given under the provisions hereinafter contained;
2.Copies made from the original by mechanical process which in
themselves ensure the accuracy of the copy, and copies compared with such
copies;
3.Copies made from or compared with the original;
4.Counterparts of documents as against the parties who did not execute
them;
5. Oral accounts of the contents of a document given by some person who
has himself seen it.
Clause 1 to 3 deals with copies of document:
This section is exhaustive in regards to the kinds of secondary evidence
admissible under the Act. The expression “means and includes in this
section” make it clear that the five clauses referring to secondary evidence
are exhaustive.
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However secondary evidence cannot be made admissible mechanically.
Sufficient reason for non-production of the original document must be
shown. For e.g. tenant file Xerox copy of money receipt in his plea without
giving proper reason and Xerox is authentic then it will be not admissible.
There are various type of secondary evidence which we will study as under:
TYPES OF SECONDARY EVIDENCE
As we have seen in the provision of this section that there are
different types of secondary evidence let us understand one by one and
judicial view on it. Their 17 main type of secondary evidence which are as
follow:
1. Certified copies
2. Copies prepared by mechanical process
3. Counter foils
4. Photographs
5. Xerox copy
6. Photostat copy
7. Carbon copy
8. Typed copy
9. Tape records
10. Copies made from or compared with original copy
11. Counterparts
12. Oral accounts
13. Registration copy
14. Unprobated will
15. Age certificate
16. Voters list
17. Newspaper report
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1. Certified copies
Under section 76 the certified copies is defined. The correctness of certified
copies will be presumed under section 79, but that of other copies will have
to be proved. This proof may be afforded by calling a witness who can swear
that he had compared the copy tendered in evidence with the original, or
with some other person read as the contents of the original and that such is
correct.
Where the existence of a document was admitted, it was held that, by such
admission, secondary evidence furnished by a certified copy assumes the
character of primary evidence.
2. Copies prepared by mechanical process:
The copies prepared by mechanical process and copies compared with such
copies is mentioned in clause 2 of this section. In the former case, as the
copy is made from the original it ensure accuracy. To this category belong
copies by photography, lithography, cyclostyle, carbon copies. Section 62
(2) states that, where a number of document are 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 content of the
original.
Copies of copies kept in a registration office, when signed and sealed by
registering officer, are admissible for the purpose of proving the contents of
the originals.
3. Counter foils:
The counter foils of rent receipts being an admissible in favour of the
landlord are not admissible against the tenant.
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4. Photographs:
HALSBURY states “ Photographs properly verified on oath by a person able
to speak to their accuracy are generally admissible to prove the identity of
persons, or of the configuration of land as it existed at a particular moment,
or the contents of a lost document”
x-ray photographs are admissible in evidence to determine the extent of a
physical injury or disease, provided it is proved that the photograph is a
photograph of the person injured or diseased. The person who took the
photograph should be called, unless his evidence is dispensed with by
consent.
The accuracy of the photographic copies, particularly of external objects, as
shown in the photograph, is to be establish on oath, to the satisfaction of
the court, either by the photographer or some one who can speak to their
accuracy. Before admitting a photograph, the person who took the
photograph has to be examined, and he should produce the negative.
5. Xerox copy:
A xerox copy of the forensic report sent by FSL after certifying the same as
true copy, was held to be admissible in evidence as officer of the FSL had no
interest in concocting report against the accused.
If any document is unregistered and its copy is produced in the court then it
will not admissible in the court as secondary evidence.
6.Photostat copy:
A Photostat copy of a letter is a piece of secondary evidence, and it can be
admitted in case original is proved to have been lost or not immediately
available, for given reason, it is not conclusive proof in itself of the
truthfulness of the contents contained therein. Photostat copies of
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documents should be accepted in evidence after examining the original
records as genuineness of a document was a fundamental question. The
witness can be shown and questioned as regards the Xerox copy of the
document on records and the same will not amount to admission of the
said document in evidence. If the witness admits the signature thereon, an
objection can be raised at that time before the court that the document,
being a copy, could not be exhibited. In a case where the Photostat copy of
the original was produced, and there was no proof of its accuracy or of its
having been compared with, or its being true reproduction of the original it
was held that the Photostat copy cannot be considered as secondary
evidence, as necessary foundation for its reception was not laid. A Photostat
copy of a document is not admissible as secondary evidence unless proved
to be genuine or the signatory accepts his signature.
7. Carbon copy:
A carbon copy of a signature is a piece of secondary evidence within the
meaning of section63(2) of this Act, being a copy made by a mechanical
process which ensures its correctness. In a claim petition, the original
insurance policy was not filed by the owner of the vehicle. He did not object
to the geniuses of the printed copy of the policy giving particulars filed by
the insurance company. He could not be allowed to raise objection that the
same could not be read as evidence.
8.Typed copy:
A typed copy of a alleged partition deed without alleging that the document
falls under one of categories enumerated in section 63 of this Act, could not
be held to be a secondary evidence.
9. Tape record:
In the case of tape recording, which was referred to by the petitioner in
support of his assertions as regards the substance of what passed between
him and the chief minister of Punjab on several matters, there was no
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denial of the genuineness of the tape-record; and there was no assertion
that the voices of the persons were not those which they purported to be .
On those facts, the supreme court held that the tape-recordings can be legal
evidence by way of corroborating the statement of a person who disposes
that the other speaker and he carried on that conversation, or even of the
statement of the person who may depose that he overheard the
conversation between two persons and that what they actually stated had
been tape recorded. What weight is to be attached will depend on other
factors which may be established in a particular case.
A taped conversation, not compared with the voice, was not allowed as
evidence.
10. Copies made from or compared with original:
Copies made from the original or copies compared with the original
are admissible as secondary evidence. A copy of a copy then compared with
the original , would be received as secondary evidence of the original.
A copy of a certified copy of a document, which has not been compared with
the original, cannot be admitted in evidence, such a copy being neither
primary or secondary evidence of the contents of the original.
When a document is an accurate or true and full reproduction of the
original,it would be a copy.
To admit secondary evidence, it is not sufficient to so merely that the
original document is lost; the secondary evidence itself must be of the
nature described in section 63.a “true copy” of a document will not be
admissible under section 63, unless it is shown that it had been made from
or compared with the original.
Ordinary copy of a sale deed cannot be admitted as secondary evidence but
copies of sale deeds of acquired land are admissible in evidence, provided
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the parties to the document are examined to prove the document.
Section 63(3) refers to those types of copies;a copy made from original; A
a copy compared with the original. A copy falling under wither of the two
heads will be admissible as secondary evidence.
When a document was admitted without objection, it was held that
omission to object to it’s omission implied that it was a true copy and it was
not opened to the appellate court to consider whether the copy was
properly compared with the original or not.
An entry in a deed-writers register , which contains all the essential
particulars contained in the document itself and is also signed or thumb
marked by the person executing the document amounts to a copy and is
admissible in evidence.
11. Counterparts:
Execution of a document in counterparts has already been explained while
dealing with explanation 1 to section 62. counterpart of document are
primary evidence as against the parties executing them under section 62
whereas under this clause they are secondary evidence as against the
parties who did not execute the.
12. Oral accounts:
This is last clause enable oral account of the content of a document being as
secondary evidence. The oral account of the content of a document given by
a person who has merely seen it with his own eyes, but not able to read it is
not admissible as secondary evidence. The word seen in clause 5 of this
section means something more than the mere sight of the document, and
this contemplates evidence of a person who having seen and examined the
document is in a position to give direct evidence of the content their of. An
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illiterate person cannot be one who has seen the document within the
meaning of the section. In Pudai Singh v. Brij Mangai, Allahbad HC held
that as regards the letting in of secondary evidence the word seen in this
section includes read over in the case of a witness who is illiterate and as
such cannot himself read it, if it is read over to him, it will satisfy the
requirement of the section. But this ruling was not accepted by HC oral
account of the content of a document by some person who has himself sent
it. Oral account given by an illiterate person will be hearsay evidence and
excluded by section 60.
13. Registration copy:
Where the plaintiff took step to produce original will but it was not
produced by the parties in whose possession it was, it was held that the
registration copy of the will which she filed, was admissible in evidence as
secondary evidence.
14. Unprobated will:
Unprobated will can be admitted in evidence for collateral purpose in any
other proceeding apart from probate proceedings.
15. Age certificate:
The age certificate issued by head master of a school on the basis of
admission from was held to be not a primary but a secondary evidence.
16. Voters list:
A voters list is not a primary evidence of date of birth but a secondary
evidence which was held in Mustafa v. Khurshida
17. Newspaper report
A news item published in a news paper is at best a second-hand secondary
evidence. A fact has to be alleged and proved and then newspaper reports
can be taken in support of it but not independently.
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Secondary evidence is the evidence, which may be given under certain
circumstances in the absence of better evidence. The general rule is that the
secondary evidence is not allowed to be given until the non production of
the primary evidence. This thing is discussed in above mention types of
secondary evidence whether they are admissible in which conditions.
The secondary evidence is admissible in certain conditions only but its
evidential value dose not change if admissible in court.
When and how of of documents are impounded :
Section 68 of Evidence Act says that a document, which should be
registered under the law, should not be used as evidence until at least one
attesting witness has given the testimony but the proviso says that,any non-
testamentary document would not require the attesting witness unless the
document worthiness is not questioned.
Section 17 of Registration Act give provision of the documents
which should mandetarily registered beyond all doubts and Section 49 do
the provision for ‘Effect of non-registration of document required to be
registered’ and proviso( c) be received as evidence of any
transaction affecting such property on conferring such power, unless it
has been registered Section 35 of Indian Stamp Act says that, ‘No
instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by the law or consent of parties authority of
receive evidence unless such instrument is duly stamped’. Section 33 of the
Stamp Act says that Court has power to impound an unregistered
document to take them as evidence Legal precision is necessary to get
clarity in some what complex and provisions which are crossing each
other.
The occasion to impound the document invariably arise when the
document is insufficiently stamped or unregistered though required by law.
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In this regard Section 34 of Bombay Stamp Act,1958 make the insufficiently
stamped document as inadmissible in evidence. In recent past after
incorporation of the amendment in Article 25 of the Schedule of Bombay
Stamp Act, the question arose of impounding of documents and its
procedure when the suits came up based on insufficiently stamped
agreements of sale of immovable properties.
By the said amendment the explanation (I) is inserted in Article 25 of
the Schedule of Bombay Stamp Act, which is as under:-
“Explanation- I: For the purpose of this article, where in the case of
agreement to sell of an immovable property, the possession of any
immovable property is transferred [or agreed to be transferred] to the
purchaser before the execution, or at the time of execution or after the
execution of such agreement * * * then such agreement to sell shall be
deemed to be a conveyance and stamp duty thereon shall be leviable
accordingly. Up till now the agreement of sale of immovable property was
neither required to be on sufficient stamp or registered one.
Since the insertion of the aforesaid amendment it is now
required to pay the stamp according to valuation of the property under
agreement of sale if it is coupled with delivery of possession amounts to a
deed of conveyance. A document which is insufficiently stamped will be
impounded by the court and it cannot be admitted in evidence unless the
stamp duty and penalty is paid i.e, the deficit stamp duty and penalty up to
10 times the deficit must be paid. If the penalty is paid then the document
can be admitted in evidence, but if the document is compulsorily
registerable then it can be looked into for collateral purpose alone.
This point is very well elaborate by Courts at various
Judgements. In view of the proviso to section 17 & Section 49 of
Registration Act read with section 68 of the Evidence Act, even an ( 8 )
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unregistered document could be read and used as evidence for collateral
purposes.(Bhanwarlal & others Vs. Heera Lal (MPLJ 2001(2),
Page 502).
It can be seen for the collateral purpose but it could not be read as
admissible evidence and the executors and witness of the
document should examine the testimony of the unregistered document.
( Phoolbai and Others Vs Kodulal and others, 1973 Jlj Short
Note, 20, Page 17).
The nature of the collateral evidence (unregistered
document)does not require to be effected by registered document. The
admission in unregistered document, which amounted to declaration of
title in the property, could not be used in evidence. Just by marking a
document as an exhibit does not dispense with its proof and exhibiting a
document without establishing by testimony of the executor or witness,
shall not give any effect event to a registered document. (Sait
Tarajee Khimchand and others Vs Yelamarti Satyam and others
AIR 1971, SC Page, 1865) .
Even the content of Thirty Years Old document could not
be presumed to be true by virtue of presumption attached to such
document. (Mohinnumddin and others Vs President Municipal
Committee Khargoan) 1993, JLJ page 67.
The admission of the content of a document is best evidence that an
opposite party can rely upon, unless it is successfully withdrawn or proved
erroneous.(Narayan Bhawantrao Gosavi Vs. Gopal Vinayak
Gosavi & oth. AIR, 1960, SC Page 1009).
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The Court Procedure for impounding:
When plaintiff produced a unregistered document before court then at
evidence, court may order the plaintiff to impound the document and take
the original document in its custody. Court, will then send the document to
registration office for calculation of the stamp duty and registration.
Registrar will then stamp the document and send back to court with
certificate of registration. Court then asks the parties on testimony and oral
evidence for the document.
Therefore, as a conclusion it can be said that unregistered document
is weak evidence. It is treated as collateral evidence. The unregistered
document shall be asked for Impounding by the court before to take it as
evidence. After completion of process of impounding of document, the
testimony of witness shall start. So far as a practical procedure it is laid
down that the insufficiently stamped document which requires impounding
need not be sent to the Stamp Collector for impounding. The Court shall
send the true copy or authenticated copy of the insufficiently stamped
document to the Stamp Collector. The Stamp Collector accordingly recover
the deficit stamp and penalty and may on request of party would take steps
for its registration. Few are the cases connected with impounding of
documents are reported as below:
1. Sheshrao Bhikaji Kale..Vrs..Damodar Pandhan 2004 (6)
Bom.C.R 354. “Direction of impounding of agreement of sale
upheld.
2. 2014 (2) Maharashtra Law Journal page 390 Hon'ble
Bombay High Cort.
In very recent Judgment of Shri Jayraj Devidas..Vrs..Shri Nilesh Shantilal
Tank, decided on 22.08.2014 the Hon'ble Apex Court has held, 'When
instrument not duly stamped –Court should proceed to impound under
section 33 of Stamp Act.
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