Introduction : This subject plays very important and vital role in our ...

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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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