Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

Summary on Subject of “Law Relating to Proof and Admissibility of Oral and Documentary Evidence”

Summary on Subject of “Law Relating to Proof and Admissibility of

Oral and Documentary Evidence”

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Introduction :

The law of evidence is a branch of adjective law. The primary object of

Indian Evidence Act, 1882 (hereinafter 'the Act') is to prevent indiscipline in

admission of evidence.

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The main principles laid down in the Act are :

a] Evidence must be confined to the matters in issue and matters relevant thereto.

b] Best evidence be adduced.

c] Oral and documentary evidence has to be established by the prescribed mode of proof.

The rules of evidence contained in the Act or in the caselaw are the result of long experience, choosing to confine evidence to particular forms and eliminating others which are of doubtful as they are most likely to disguise truth than to discover it. To allow a Judge to introduce such evidence at his own discretion would destroy the whole object of the Act.

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Evidence : Meaning of The word “evidence” is defined under Section 3 of the Act as under :

Evidence means and includes

1) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry.

Such statements are called oral evidence.

2) all documents including electronic records produced for inspection of    the court.

Such documents are called as documentary evidence.

2) The two main senses of the word 'evidence' are : firstly, the means,  apart from argument and inference, whereby the Court is informed as to the issues of fact as ascertained by the pleadings; secondly, the subjectmatter of such means. In real sense evidence denotes the things that which may be placed before the Court in order that it may decide the issues of fact.

Definition of term “evidence” as given by the Act does not cover everything that a court can rely upon to conclude, whether a fact is proved,

disproved or not proved. It is clear from the fact that the expressions “proved” and “disproved” denotes “matters before court” to be considered by the court before arriving any conclusion. Therefore, apart from oral and documentary evidence there are certain other media of proof i.e. circumstances brought on record, the result of local investigation, facts of which the court takes judicial  notice, material objects, and so on. The definition of evidence is therefore,  considered to be incomplete as it does not include all types of evidences on which the decision of the judge may rest. Therefore, the definition of evidence given under the Act can not be read in isolation but has to be considered with definitions of “proved” “disproved” and other provisions of the Act and other relevant laws.

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classification of Evidence :The  evidence is mainly classified as i) oral and documentary evidence,

ii) direct and indirect (hearsay) evidence iii) direct and circumstantial    evidence, iv) primary and secondary evidence, iv) presumptive evidence, v) real evidence, vi) judicial and nonjudicial evidence. The circumstances in which a particular kind of evidence is admissible and acceptable differs.

Therefore, it is necessary to understand the classification of evidence.

Relevancy and Admissibility The term relevancy and admissibility used in different senses.

Relevancy relates to facts whereas admissibility relates to evidence. This is 3 clear from the fact that the word “admissible” has nowhere been used in the chapter of relevancy. In Section 136 of the Act these words are used in distinct sense.

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Admissibility of Evidence :

The admissibility of a piece of evidence is a proposition of law of  universal application while the credibility of that piece of evidence would be a  question of fact to be determined on the peculiar circumstances of each case.

Accordingly, it is for the Courts to decide whether a particular piece of evidence produced by any party before it is admissible or not. For proof of any  particular fact, particular number of witnesses need not be examined or particular kind of evidence need not be adduced. After recording the evidence, court shall, having regard to the matters before it including the evidence admitted by it, see and conclude whether a particular fact is proved or not.

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Proof and Evidence :

proof of fact and evidence of a fact are not synonymous terms. Evidence  is medium of proof while proof is the effect or result of evidence. Thus, proof is the persuasive effect of a mass of evidentiary facts, regarded as a whole as  to a probandum.

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Standard of Proof :

Standard of proof refers to the amount of evidence required to prove a legal claim or assertion. For different nature of proceedings, standard of proof required is different. In civil cases, preponderance of probabilities is the criteria. In, criminal cases, the guilt of accused has to be established beyond all reasonable doubts.

In quasicivil    proceedings like u/s. 125 of the Code of Criminal Procedure 1973 or under section 12 of the Protection of Women from 4  Domestic Violence Act, 2005, a primafacie view of the case is required to be taken while considering the evidence produced by the claimant. However, said principle is not applicable in respect of evidence produced by the respondent and the respondents in such cases have to adduce strict proof to establish his/their defence1. Evidence is, therefore, required to be appreciated in view of the standard of proof required in a particular kind of proceeding. Further,  standard of proof is to be ascertained in view of doctrine of purposive construction of a statute applicable to a given case.

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Proof How Effected :Proof  considered as the establishment of material fact in issue in each  particular case by proper and legal means to the satisfaction of the court is  effected by a)

statement of witness, admissions or confessions of parties and

 production of documents or other things.

b) presumptions.

c) judicial notice.

d) inspection/observation of the demeanor of witness or local

investigation.

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Oral Evidence :The  expression oral evidence means and includes all statements which the court either permits or requires to be made before it by witnesses in  relation to matter under inquiry. The statement may be made in any manner

by which the witness is capable of making it. A witness who cannot speak may  communicate the statement in any manner by which it can be made intelligible, such as, by writing, singes or combination of both.

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All the facts including the genuineness of a document and truth of  1 K. Vimala Vs. K. Veeraswamy [(1991) 2 SCC 375].

5 )  contents of the documents can be proved by oral evidence. Oral evidence if worthy of credit is sufficient without documentary evidence to prove a fact.

Sections 59 provides that, all facts except the contents of document or electronic record can be proved by oral evidence. Chapter IV also provides that, in all cases oral evidence must be direct. It must consist of a declaration by the witness that a fact which he testifies was perceived by him personally.

Objections to Questions Put to Witness and Procedure Thereto : In view of rule 11 of Order XXVIII of the Code of Civil Procedure, 1908 when any question put to a witness is objected by a party or his pleader and the court allows the same to be put, the Judge shall take down the question, answer, the objection and the name of person making it together with the decision of the Court thereon.

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Rule Against Hearsay Evidence :

It is the cardinal rule of law of evidence that the best evidence should be brought before the Court. Direct evidence is the best evidence. Test to  distinguish direct and hearsay evidence is, it is direct if to act upon it the court has to rely upon only the witness, whereas it is hearsay if it has to rely upon not only the witness but also on some other person.

The intention of Section 60 is to take care that whatever is offered as evidence shall itself sustain the character of evidence. It must be immediate.

It is the evidence by witnesses who themselves saw, heard or perceived any   fact by any other senses. The mandate of section 60 goes to the extent of  laying down that, if the oral evidence of a witness which refers to an opinion  or to the ground on which that opinion is held, it must be evidence of that person who holds that opinion on those grounds. Evidence of a statement made to a witness who is not himself called as a witness may or may not be  hearsay. It is hearsay and inadmissible when the object of the evidence is to  establish the truth of what is contained in the statement  .

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2. Bar of reception of hearsay evidence does not apply when object is not to establish truth of  statement but only that such statement was made.

3. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental  state and conduct thereafter, of the witness or some other  person in whose  presence these statements are made.

The word 'hearsay' is used in various senses. Some times it means  whatever a person is heard to say; some times it means whatever a person   declares on information given by someone else4. It is not in every case that a  witness who hears something and gives evidence in Court in respect thereof   can be said to given hearsay  evidence. Hearsay  evidence has not been  defined in Evidence Act, but it is understood, hearsay means something  which a witness before the Court says that he heard from a third party, who is not called as a witness and the statement of that witness is inadmissible to   prove the truth of the facts stated. Hearsay,  therefore means a secondary evidence of oral statement. When case history of patient is recorded by doctor  on patient's version, it can not be said to be hearsay evidence. The statement of doctor as to case history disclosed to him by the patient is admissible due to application of Section 60 of the Act, as the doctor has recorded the history from what he heard from the patient5. The principle upon which hearsay  evidence is admitted under section 32 (3) is that a man is not likely to make a  statement against his own interest unless true, but this sanction does not arise  unless the person making it knows the statement to be against his interest.

The question whether the statement was made consciously with the  knowledge that it was against the interest of the person making it would be a  question of fact in each case and would depend in most cases on the 

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2- Balram Prasad Agrawal vs. State of Bihar & others (AIR 1997 SC 1830).

3- Raja alias Satiya Gopal v. State of M.P., (1986) 2 Crimes 581.

4-Jain J.D. v. Management of State Bank of India, AIR 1982 SC 673.

5. Shrichan Girdharilal Batra V. Life Insurance Corporation of India, (1994)2 Bom CR 190.

7 . circumstances in which the statement was made, except when the statement  is categorical in terms as, for example, "I owe so much to such and such  person". There can hardly be any direct evidence to show that the person  making the statement in fact knew that the statement was against his interest   and so in most cases knowledge would have to be inferred from the surrounding circumstances.

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6. The cardinal principle behind the exclusion of hearsay evidence is that  all evidence must be direct i.e. the fact to be deposed to whether it is a fact in issue or a relevant fact must be deposed to by a person who has seen, heard  or perceived the same. Hearsay evidence rest on the veracity and competence of some person other than the person attempting to give such evidence. The  reasons for exclusion of hearsay evidence, whether oral or documentary are that, the original maker of the statement is not put on oath nor is he subjected to crossexamination  and the party against whom such evidence is led has no opportunity of testing the means of knowledge of the original maker of the statement. Moreover, the truth of original statement is diminished in the course of those statements.

Hearsay evidence is excluded on the ground that, it is always desirable in the interest of justice to get the person whose statement is relied upon into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of crossexamination.

It is a fundamental rule of evidence under the Indian law that, hearsay evidence is inadmissible.

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             A statement oral or written made otherwise than by witness in giving evidence and a statement contained or recorded in any book, document or record, whatever proof of which is not admitted on the other grounds are deemed to be irrelevant for the purpose of proving the truth of the matter  .

6- Ramrati Kaur v. Dwarika Prasad Singh and oth. AIR 1967 SC 1134 : 1967 ALL LJ 277 : 1967 (1)  CSR 153.

8  stated. That these species of evidence cannot be tested by crossexamination  and that in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embrassing and dangerous

length, its intrinsic weakness, its incompetency to satisfy the mind of a judge about the existence of a fact, and the fraud which may be practiced with  impunity, under its cover, combined to support the rule that hearsay evidence is inadmissible .

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7.” Exceptions to Hearsay Evidence :Following

are exceptions to the rule of exclusion of hearsay evidence in

view of provisions of the Act :

i) Res geste (Section 6) : spontaneous and contemporary statements or facts forming part of same transaction.

ii) Admissions and confessions.

iii) The statement made by a person who is dead or who cannot be called as a witness like, dying declarations, statements made in course of business, statement against interest of maker(Section 32, 33),

iv) Entries in books of account kept in course of business (Section 34),

v) Entries in public registers on record (Section 35)

vi) Statements in public documents (Section 74).

v) Any former statement made by a witness relating to a fact at or about the time when the fact took place or before any authority legally competent to investigate the fact can be proved in order to corroborate testimony of such witness (S.157).

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Documentary Evidence :

As per Section 3 of the 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

7 Kalyankumar Gogoi vs. Ashutosh Agnihotri and Anr. AIR 2011 SC 760.

9 the purpose of recording that matter.

Documentary evidence means all the documents including electronic records produced for the inspection of the court.

Exclusion of Relevant Evidence by Positive Rules of Law :The Act has put an embargo on the admission of various species of evidence by holding them inadmissible and even some other enactments also provides the same.

a] Section 162 of the Code of Criminal Procedure prohibits the use of statement recorded under section 161 of the Code of Criminal Procedure for any purpose, save for the purpose of contradicting the witness by the accused and with the permission of the Court, by the prosecution, in the manner provided by section 145 of the Act.

b] Confessions caused by inducement, threat or promise or extrajudicial  confessions made to a police officer are inadmissible in evidence.

c] Communications during marriage (section 122), confidential communication with legal advisors (section 129), professional communications (section 126), are other examples of evidence held to be inadmissible, howsoever relevant it be.

d] Hearsay Evidence is likewise barred – section 60.

e] Evidence excluded by sections 91, 92, 93, 94 of the Act.

Provisions of the Act and Code of Civil Procedure : There are certain provisions in Civil Procedure Code for filing documents in civil court. Order VII, Rule 14 provides that where a plaintiff  sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented and shall at the same time deliver the document  or a copy thereof to be filed along with the plaint. Then, it provides that the  plaintiff shall give a list of other documents to be relied by him. Rules 15, 16  and 17 also lay down procedure for bringing documents on record. Then Rule  10, 18 lays downs that if a document is not presented in Court or not mentioned in list, according to Rules 14, 15, 16 and 17, it shall not without the leave of  the Court be received in evidence.

Then Order XII, Rule 1, lays down that the parties shall file at the first   hearing of the suit all documentary evidence on which they intend to rely. If the documents are not produced at the first hearing they cannot be produced unless good cause for their nonproduction is shown to the satisfaction of the court (Rule 9 Order XIII).

Order XLI, Rule 27 lays down that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the   appellate court. But, if the trial court has refused to admit evidence which ought to have been admitted or if the appellate court itself requires, it may allow evidence to be adduced.

In all the circumstances mentioned above, a party has no right to adduce evidence. It lies in the discretion of the court to permit evidence. Section 5 of Act gives to party a right to adduce evidence. If the explanation would not have been appended to the said provision there would have been great controversy between the provisions the Act and C.P.C. Now it is undisputed that Section 5 does not override the provision of the C.P.C.

Illustration (b) to section 5 is an illustrates the explanation  .

 8. Purpose of production of documents :The purpose of production of documents in a proceeding before the court is to rely upon the truth of the statements contained therein. This

involves the examination of three questions :

i) Is the document genuine ?

ii) What are its contents ? and

iii) Are the statements in the document true ?

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8 Hemendra Rasiklal Ghia V. Subodh Modi 2008 (6) Mh.L.J 886.

11 For example, a letter is produced as having been written by ‘A’ and it contains a statement that in his presence ‘B’ paid an amount of money to ‘C’.

The three questions are :

i) Is the letter written by ‘A’ ?

ii) What does the letter contain? and

iii) Is the statement that ‘B’ paid an amount of money to ‘C’, true ?

The first and third questions can be answered by calling ‘A’ as a witness (Section 59). But the second question can normally be answered only by  producing a letter (section 61). When the original letter is produced, it is said that primary evidence of the contents is given (Section 62).

The contents of document mean only what the document states.

Section 61 provides that the contents of documents may be proved either by  primary or by secondary evidence. It also means what the document states and not the truth of what the document states9.

In order to prove a document a party proposing to rely upon it has to prove its genuineness, its execution and its contents and truth of contents. Where the contents of a document are required to be proved, the same cannot be admitted in evidence unless and until the author of the concerned document is examined. Hence, any attempt to bypass this essential  requirement would result in introducing hearsay evidence as to documents.

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Marking Exhibit to the Documents :

Document is required to be proved in accordance with the provisions of the 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

9 Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1 :1983 Mah LJ 339:(1983) 54 Com Cas  136.

12 mistakenly or otherwise it is not exhibited, still it can be read in evidence .

10. Mere exhibiting document does not dispense with its proof .

11. Party cannot object to admissibility of documents marked as exhibits, without any objection from him.

12. Marking of a document as an exhibit on its reference during cross examination does not dispense with proof of the execution, contents and

genuineness of the document in accordance with law of evidence. Such a document marked as an exhibit is only for the purpose of locating and identifying the document13. Thus, execution of the document has to be proved by admissible evidence, that is by the evidence of those persons, who can assert for the truth of the fact in issue but where document produced is admitted by the signatory thereto and then marked as an exhibit, no further burden to lead additional evidence to prove the writing and its execution survives.

14. It need to be understood that admission of document means admission of facts contained in the document.

15.  Stage of Proving Documents :

Any document filed by a party passes through three stages before it is  held to be proved or disproved. First stage is production of document.

Documents though filed on record does not become part of the judicial record. Second stage is of tendering or producing the document in evidence by a party and the admission of the document in evidence by the court.

 A document admitted in evidence becomes a part of the judicial record of case and constitutes evidence. Third stage is when it is proved, disproved or not proved. At this stage, the court is called upon to apply its judicial mind by 10 Bama Kathari Patil V. Rohidas Arjun Madhavi [2004 (2) Mh.L.J. 752 Bombay High Court].

11 AIR 1971 Supreme Court,1865; see also Saif Tarjee Khemchand & others V.Yelamarti Satyam AIR 1979 SC 1865.

12 AIR 1972 Supreme Court 608.

13 Geeta Marine Services Pvt. Ltd. And another Vs. State and another 2009 Cri. L. J. 910 (Bom).

14 Narbada Devi Gupta Vs. Birendra Kumar Jaiswal AIR 2004 SC 175 and Saif Tarjee Khemchand &  others V. Yelamarti Satyam (AIR 1979 SC 1865).

15 Sitaram Motilal Kalal Vs.Santanuprasad (AIR 1966 SC 1697).

13 reference to section 3 of the Evidence Act. Usually this stage arrive at final hearing of the suit or proceeding.

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Admission of a document in evidence is not to be confused with proof of a document. When the court examines the admissibility of a document it concentrates only on the document. When it has to form a judicial opinion whether a document is proved, disproved or not proved, the court looks not at the document alone or only at the statement of the witness standing in the box but it has to take into consideration probabilities of the case as emerging from the whole record.

Mode of Proof of Documents :Before a document is admitted in evidence, its execution, contents and truth of the contents have to be established fully. So far as the admissibility,

execution, contents and the truth of the contents of a document are concerned, the rules contained in the enactment must be strictly observed. It is not permissible to exercise any relaxation or dispensation of the proof. Any  document admitted in evidence without prior satisfaction about the execution, proof of contents and the proof of the truth of the contents thereof is fraught with grave danger of considering evidence which may be dubious or unreliable. The statutory procedure and compliance with the requirements for admission of evidence oral as well as documentary shall not to be dispensed with.

Documentary evidence howsoever essential and important it may appear to the decision of a case, cannot be admitted if it is inadmissible or if it has failed to meet the requirements of proof of documents.

Whatever the document may be it cannot be used in evidence until its genuineness has been either admitted or established by proof which should be

given before the document is admitted. Section 67 enacts that, if a document 14 is alleged to be signed or have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting.

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However, the above section does not provide how to prove same.

Handwriting or signature may be proved or disproved in the following ways :

a) by calling the writer who signed or wrote a document.

b) by any person i.e. an attesting witness who actually saw him writing the  document.

c) by the evidence of the opinion of experts under the provisions of Sec. 45.

d) by the opinion of a person who is acquainted with a handwriting or signature.

e) by comparison under Section 73 of some or more of the admitted or proved specimen of handwriting of the person, with the handwriting of

the disputed document.

f) By proof of an admission by a person who alleged to have signed, by the statement of the deceased, professionals, scribe, made in the ordinary course of business that the signature on the document is that of a  particular person.

g) by other circumstantial evidence.

Noticeably, opinion of a witness about handwriting is not conclusive  evidence.

Proof of Execution of Documents Required by Law to be Attested  As per section 68 of the Act, if a document is required by law to be  attested, it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness  alive and subject to the process of court and capable of giving evidence. It also provides that, it shall not be necessary to call an attesting witness in proof of

execution of any document, not being a Will, which has been registered in accordance with provisions of Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied.

The object of above provision is to afford proof of genuineness of document. The provisions of law describing attestation would be defeated if a document required to be attested were to be allowed to be used in evidence otherwise than in accordance with the provisions of the Act. If out of three attesting witnesses of Will, two are dead and the attendance of third witness could not be procured after all the processes for securing his attendance has been exhausted, in view of the provisions of Section 68 and 69 the Will can be proved by proving the attestation of the attesting witness to have been made by him and proving the signatures of the executant of the Will.

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Objection to the Mode of Proof :

An objection merely to the mode of proof of a document, which is relevant, should be raised at the very time the document is sought to be tendered in evidence and proved, and if not so raised, it should be deemed to have been waived, because if it had been raised at the proper time it would have been perfectly possible for the party tendering the document to do the needful. Objection to the admissibility cannot be allowed in appeal 16.

However, this principle of waiver does not apply in criminal cases.

Execution :Either

the signature or handwriting on a document may be proved by a person who has executed the document or by a person who saw the document

being signed or written. The execution can also be proved by evidence of a person who is acquainted with the handwriting or signature of the person by

whom the document was written or signed. The courts will not accept the opinion of a witness as to handwriting or signature of another person unless

his acquaintanceship therewith falls within one of the three categories provided by the explanation appended to section 47.

16 Haji Md. Vs. State of West Bengal, AIR 1959, SC 488.

16 .Proof of Contents of document :

The contents of document may be proved either by primary or by secondary evidence. Primary evidence means the document itself produced for the inspection of the court. Even on such proof the court is not bound to accept the contents, unless it is satisfied about the truth of the matter stated therein. The proof of execution of a document is not proof of contents of documents. The truth of the facts stated in the document is to be proved by

admissible evidence.

Contents :Section  67 of the Act only permits the proof of the signature or handwriting of the person signing or writing the documents to be given in evidence and considers it to be sufficient in those cases where the issue between the parties is whether a document was signed or written wholly or in part by that person. The above section does not provide that, if it is proved that the signature or handwriting of the document as alleged is in the handwriting of that person, it would go to prove the contents of that document. Thus, the contents of a document cannot be taken as proved merely upon the signature and/or handwriting being identified which will not prove the correctness of the truth of the contents.

When the contents of document were sought to be proved by proving the signature below the document, it was held17 that what was formally proved was the signature of the author and not the writing of the body of the document and that even if entire document was held formally proved that did not amount to proof of truth of the contents of the document. The proposition which emerges from the above ruling is that merely proving the execution of a document i.e. either the signature or the handwriting of document or both does not prove the truth of the contents of the document.

17 Mr D and Mrs. S advocates 68 DLR 228.

 17 -Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in a document. If the truth of the facts stated in a document is in issue, mere proof of the handwriting and execution of document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents stated therein would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.

The contents of the document can only be proved by examining the scribe of the document. It would be hearsay evidence as to contents of a document unless the writer thereof is examined before the court .

18. A distinction has to be made between the proof of the contents of a document and truth of the contents of the document. Where only the contents

of the document are necessary to be proved, the author of the document need not be examined. However, where the truth of the contents of the document is to be proved, normally examination of the author of the document is must if he is available.

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Secondary evidence :Contents

of documents can be proved either by primary or secondary evidence19. Section 63 of the Act provides that, secondary evidence means and includes i) certified copies of public documents given under the provisions hereinafter contained, ii) copies made from the original by mechanical

process which in themselves ensures the accuracy of the copy and copies compared with such copies, iii) copies made from or compared with the original, iv) counterparts of documents as against the parties who did not execute them, v) oral accounts of contents of a document given by some

18 Manoramabai Amrutrao Deshmukh and Anr. vs. Laxman Atmaram Kathale 2005 (2) Bombay CR 353.

19. Section 61 of the Act

18 person who has himself seen it. Thus, the expression 'secondary evidence' denotes that evidence which is not primary. The Act though based on best evidence rule, it permits leading secondary evidence of documents. Before a party can lead secondary evidence, the party has to satisfy the court that his case falls within one of the clauses as enumerated in Section 65. Thereafter,

the party has to ensure that, the type of secondary evidence which he proposes to adduce is within one of the five categories as indicated and included in Section 63 of the Act which is exhaustive in cataloging the meaning of secondary evidence. Provision of Section 63 of the Act ensures that the correctness and accuracy of contents of the original are retained in the copy. The provision appears to be based on the principle of assurance that in the absence of the original, the contents of the copy are exactly as contained in the original and the copy is not tampered with.

As per the observations of Hon'ble Bombay High Court,20 there is no need to seek any permission or leave of the court to adduce secondary evidence. Accordingly, court can not reject a piece of secondary evidence merely on the ground that a formal leave to adduce such evidence is not sought for, provided that the conditions enumerated under section 65 of the Act are satisfied. Further, only such type of secondary evidence can be adduced which is permissible as per the said provision having regard to the nature of document sought to be produced.

Secondary evidence as general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible the party

who fails to prove its validity is not entitled to introduce secondary evidence of its contents. It is necessary for the party to prove existence and execution of the original document .

20 Shri. Karthik Gangadhar Bhat vs Smt. Nirmala Namdeo Wagh And Anr. Judgment dated 3rd Nov. 2017

21 J. Yashoda vs. K. Shobharani reported in 2007 (5) Supereme Court cases 730 .

19 The rule providing for adducing best evidence which the nature of a case will admit only states that, so long as the higher or superior evidence is within the possession of a person or may be reached by a person, that person  shall give no inferior proof in relation to it. Secondary evidence may be given in absence of better evidence which law requires to be given first. It is so when a proper explanation of absence of that better evidence is given .

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22. Hence, it is necessary that, existence and execution of original document is proved. The conditions laid down in Section 65 must be fulfilled before secondary evidence is admitted.

When the genuineness of a document was a fundamental question, it was held, admission by way of photostate copies of secondary evidence could not have been done without examining the original

23. Where the original are not produced at any time and when no foundation is led for the establishment of right to give secondary evidence,

copies should not be taken into consideration.

.24.To sum up, when anybody wants to lead secondary evidence two things are required to be proved, there must be evidence of existence of the original document and there must be evidence of their loss

25. Section 67 is applicable and governs secondary evidence also. Hence a party producing secondary evidence of a document is not relieved of the duty to prove the execution, proof of contents and proof of truth of the contents of the original.

Thus copies made from the original have to be made when the same was executed or when it came into existence and so also copies made from 22 ibid

23 Government of Andhra Pradesh and ors. vs. Karichinna Venkata Reddy and ors. AIR 1994 SC 591.

24 Roman Cathelic mission vs. The State of Madras AIR 1966 S.C. 1457.

25 Bank of India vs. M/s Ali Bhoy Mohd. And Others 2008 (5) Bombay C.R. 808

20 the first copy has to be made and compared with the first copy.

Clause (5) of Section 65 permits oral accounts of the contents of a document being given by some person who himself saw it. A person unable to read a document cannot give secondary evidence of its contents even though the contents of the documents might have been read over to him. If such evidence is permitted then much would depend upon the credibility of the person who read over the document to the witness.

So far as the provisions of Sections 61, 63, 67, 74 and 90 are concerned, it is clear that a certified copy of public document can be admitted as secondary evidence to prove only what the document states. The truth of what the document states must be separately established 

26. Facts Admitted or Judicially Noticeable Need Not Be Proved : The court has to try the questions on which the parties are at issue not those on which they are agreed. Section 58 of the Act provides for dispensation of the proof of a fact which is admitted. However, in its discretion, conferred on it by section 58, court can require a party to prove a fact though it is admitted by other party.

Section 56 of the Act provides that no fact of which the Court will take judicial notice need to be proved. Section 57 of the Act enumerates 13 clauses containing various facts of which court shall take judicial notice. Further, in respect of those 13 clauses and in respect of matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.

When the court is called upon by any person to take judicial notice of any fact, court may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.

26 Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1 : (1982) 3 Com LJ 89 : 1983 Mah LJ 339.

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21 -Presumptions and Dispensing Proof :

Although it is said that the party asserting a fact shall prove it unless admitted by other party or unless it is judicially noticeable, it need to be borne

in mind that the court has to presume some facts as required either by the Act or other enactments.

The presumptions provided by the Act are : presumptions of fact and presumptions of law. Further, they can be categorized as rebuttable and

irrebuttable presumptions. On proof of a particular fact or set of facts the inference/s provided by the Act in respect of some other fact/s has to be drawn.

The Act has provided such presumptions by using the expressions “may presume” “shall presume” and “conclusive proof.” The meaning and result of

use of those expressions is provided by section 4 of the Act. The presumptions so provided are based on rule of logic and prudence.

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Following are the presumptions provided under the Act :

i. Sections 79 to 90A deals with presumptions as to documents and electronic records,

ii. Section 111A deals with presumptions as to certain offences,

iii. Section 112 provides for conclusive proof of legitimacy of child,

iv. Section 113 provides for conclusive proof of cession of territory,

v. Section 113A provides for presumption of abetment of suicide by

married woman within seven years of her marriage,

vi. Section 113B provides for presumption of dowry death,

vii. Section 114 provides for presumptions of existence of certain facts,

viii. Section 114A provides for presumption as to absence of consent in certain prosecution for rape.

Apart from these provisions the presumptions are also provided by other enactments. In order to raise any of such presumption the facts essential

22 to raise the same have to be established first.

Exclusion of Oral Evidence by Documentary Evidence :Chapter VI of the Act deals with exclusion of oral evidence by documentary evidence. Documents once reduced into writing are considered to be the best evidence of the facts stated therein. It is on the higher footing than oral evidence. The very object for which writing is used is to perpetuate the memory of what is written to provide permanent proof of it. In order to give effect to this, the document itself must be produced. Section 91 is based on the best evidence rule.

The expression any other disposition of property would include a sale, mortgage including equitable mortgage, lease and sublease. The oral evidence is admissible to prove the intention and conduct of the parties to show whether, in true sense, the transaction is outright sale or is it a mortgage.

“Will” is neither a contract nor a grant nor a disposition of property until the death of the testator which makes it operate. Hence, section 91 does not apply to will. Where a document is intended to be the evidence of a partition, oral evidence as to the terms of the document is excluded by this section.

As per proviso to Section 92 following facts may be proved by oral evidence :

Proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake

in fact or law.

Proviso (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether this proviso applies, the court shall have regard to the degree of formality of the document.

23 -Proviso (3) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved.

Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Proof of Electronic Record : Section 65A

provides special provision relating to electronic record. It provides that the contents of electronic record may be proved in accordance with provisions of section 65B.

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Section 65B deals with admissibility of

electronic record. Purpose of the provision is to sanctify secondary evidence in electronic form generated by a computer.

Only if the electronic record is duly produced in terms of section 65B of the Act, the question would arise as to genuineness thereof and in that situation resort can be made to section 45A (opinion of examiner of electronic evidence).

Proof of electronic record is a special provision introduced by the Information Technology Act. Very caption of Section 65A of the Act read with

section 59 and 65B is sufficient to hold that special provisions on evidence relating to electronic record shall be governed by the procedure prescribed .

24 under section 65B of the Act. That is a complete code in itself. Being a special law, the general law under section 63 and 65 has to yield.

Unless a certificate in terms of section 65B

of the Act is obtained, the secondary evidence pertaining to that electronic record is inadmissible.

However, if primary evidence of the electronic record is produced, same is admissible in evidence without compliance of conditions in section 65B of

the Act.

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Test of Proof :Having regard to the definition of the terms “proved” “disproved” and “not proved”, as per section 3 of the Act, a fact is said to be proved if after having regard to the matters before it, the Court believes that it exists or considers its existence so probable that a prudent man ought to have relied on supposition that it exists. A fact is said to have disproved, if after having regard to the matters before it, Court believes that it does not exists or considers its nonexistence so probable that a prudent man ought to have acted on supposition that it does not exist. When a fact is neither proved nor disproved, it is said to be not proved. Thus, the expressions 'proved' and 'disproved' denotes the probabilities upon which a prudent man may base his opinion as to existence or non existece of a fact.

Accordingly, when any party has adduced some admissible evidence in respect of any particular fact, conclusion whether it is proved or not depends on the conclusions which could be drawn from the evidence so adduced. For that purpose the court shall consider 'the matters before it' in whole. Further, such conclusions can be arrived at, having regard to the probabilities which could be arrived by a prudent man. Hence, neither any straight jacket formula can be laid for establishing proof of any fact, nor it can be expected by the courts that the party to the proceeding shall adduce evidence which would establish a fact with mathematical accuracy.

Admissibility in evidence Report of Government Analyst The provisions like those in Section 293 of the Code of Criminal Procedure and O. XXVI, R.10 of the Code of Civil Procedure, 1908 provides

that the report of government analyst or commissioner be admitted in evidence without any formal proof. If the Government Analyst were to be examined as a witness, then, his oral evidence prevails over his report. Then Analyst is subjected to cross examination and as such, the evidence of the Analyst cannot be conclusive only on the basis of report. Once the prosecution decides to examine the Government Analyst his oral evidence would prevail over the statement contained in his written analysis report  .

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27. Unstamped document :

Section 35, Stamp Act lays down that a document unduly stamped shall not be admitted in evidence nor shall it be acted upon. Section 36 of the same Act lays down that where an instrument has been admitted in evidence, such evidence shall not be questioned subsequently. Thus, taking both of the

sections together it has been laid down that, if an unstamped document has been proved and exhibited no objection to its admissibility can be raised at the later stage either at the trial Court or at the appellate stage

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28. Conclusion :

The Indian Evidence Act is not an exclusive law relating to admissibility and manner of adducing evidence. Therefore, the provisions of the Act shall

be read in harmony with other enactments. Only such evidence can be admitted which qualifies the requirements of admissibility and manner of proof in which it should be adduced. The objections taken as to the admissibility of evidence and mode of proof has to be decided by the Courts at the relevant time having regard to the nature of objection. Although, the 27 State of Maharashtra v. Shri R.A.Chandawarkar & co. 1999(5) Bom CR 519.

28 Javerchand Vs. Pukhra Suranaj (AIR 1961 SC 1655), Anna Malai Vs. Veerappa (AIR 1956, SC 12).

26 improper admission or rejection of evidence is not fatal until the failure or miscarriage of justice, in fact, has occurred thereby, admitting or rejecting the evidence improperly is likely to deprive a party of adducing the other admissible evidence or adducing the evidence in the manner required by law.

Thus, Judge is bound to ensure that the order admitting or rejecting admission of evidence is passed at the relevant stage and with cogent reasons for so doing.

                             Thank You, 

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