The matter is called out, you walk into court confidently thinking all your documents will be marked because you have them neatly arranged in a compilation…15–20 minutes later you wonder why the documents are marked for identification and half your documents are not admitted. That senior who appeared just before me got his documents admitted….what happened to me?
Well most of us have faced this at least in our junior days at the bar. Why did that happen?
The answer lies in the realm of sufficiency of proof of the document sought to be marked.
I’m going to discuss how to get over this as best as possible given the documents you have in hand in a given case.
First we need to understand that evidence consists of “documentary evidence” and “oral evidence”
This article restricts itself to proof of documentary evidence.
Documentary evidence under the Evidence Act, 1872 (the Act) is of various types:
Broadly and most often we deal with “private documents”[1]. Documents such as letters, agreements, emails, etc. exchanged between contesting parties to a litigation are private documents.
The next set of documents which one deals with are “public documents”[2] for example documents such as a birth certificate, marriage certificate, a bill of a public water utility or electric company or an FIR filed before the police station. In these cases the record of the authority or a certified copy[3] or an extract is issued by an officer of a public authority discharging functions delegated to him – these are public documents. A public document is one which is basically a reproduction of an entry contained in some kind of public register, book or record relating to relevant facts or a certified copy issued by the authority as for example a birth certificate providing details such as date of birth, place where the birth took place the name of the mother, etc. Generally speaking, courts do accept public documents more readily than private documents as there is a presumption that the risk of tampering with public documents is far less as it has come from a reliable source such is the public record or register duly maintained in an official capacity. The Courts also consider the entries in such records maintained by public authorities to be relevant facts[4]. Courts generally lean in favor of accepting or admitting the contents of public documents since these documents have as their genesis some reliable source and can be traced back to that reliable source for verification if necessary. However even a public document still doesn’t stand proved by the mere fact of its production. It must be proved in the normal manner of proof as discussed hereafter when an objection to it is taken.
Sometimes you also deal with what are known as ancient documents or documents which are more than 30 years old[5]. Section 90 of the Act provides a presumption with regard to these documents.
There is also a category of documents which we come across which could be public or private documents but they are not documents in original. Proof of such documents poses a further complication when it comes to proving the same. To prove such documents we need to lead what we all know as secondary evidence[6].
We also come across cases where something is said by one person to another and that is not recorded in writing between the two persons. In that case only “oral evidence” would have to be given as opposed to “documentary evidence”.
For all these cases what is needed to be proved is the truth of the facts stated in the documents be it an original document or a carbon copy or xerox copy or a public document.
The question which really requires to be answered is how is that done and what is the correct mode and manner of doing so.
Under the Act, the court usually accepts a fact is proved when after considering the document and the evidence before it, it comes to the conclusion that what is stated in the document is believable based on what the document on the face of it states along with what a witness to the document states about the contents and the manner in which the document was prepared/authored. This is the heart of the matter and it is when the court believes not only in the existence but also truth of contents that the document would be exhibited by the court.
At the stage of exhibition of the documents the court looks at two basic aspects, one the existence of the document and secondly the proof of contents being sufficiently deposed to by a witness having requisite knowledge of the contents thereof. On being satisfied of both these criteria the document in question will be exhibited. At the stage of marking or exhibiting documents the truth of what is stated in the document is not considered and is left open to final evaluation at the trial after cross-examination is conducted and the entire testimony of the witness on the document is weighed. It is then that the court concludes the document speaks the truth or not and decides what weightage is to be given to it for arriving at a final decision in the matter.
Objections to exhibition of documents are of two basic types and are indicated in the admission and denial statement exchanged between parties once a compilation is tendered to the opposite party. There can be an objection/denial of the very existence of the document and secondly an objection/denial of the truth of contents of the documents. Depending on the objection taken the mode of proof is required to be tailored.
PROOF OF A DOCUMENT WHEN THE CONTENTS ARE NOT DISPUTED BUT THE OBJECTION IS TO THE FACT THAT IT IS NOT AN ORIGINAL
Where the document is not disputed in terms of its existence or contents but the objection taken is that the document in the compilation is a xerox copy and not the original (since it may be lost or not traceable), the mode of proof would be in the case of a private document to lead secondary evidence which is discussed later. However this is only necessary if the court so insists as once the existence and contents is accepted or not denied even a copy would be exhibited as there is no real objection and what the court has to consider is the truth of contents. Similarly in the case of a public document (if the court so insists) the mode of proving such a public document is to have as required either the actual public document produced by issuing a witness summons through court or alternately having a certified copy or extract of the document[7] produced as proof of the contents of the public document. Here in such a case a witness is asked by way of a witness summons to merely produce a document in position of the public authority. The procedure followed usually by the courts is that the original document is taken possession of from the public authority (who attends court at a time fixed), and exhibited after he/she confirms it forms part of the official records maintained by the authority. It is important that this fact i.e. that the document produced is shown to form part of the official record maintained by the authority which is producing it is clearly stated by the witness summoned for the purpose. The court after being satisfied of this i.e. that the documents are produced from the authentic records of the public authority would then exhibit the documents. This is how a public document can be proved in case there is no contest to the existence of the public document but the objection is about it not being an authenticated document.
PROOF OF A DOCUMENT WHEN THE CONTENTS AND EXISTENCE ARE BOTH DENIED
In case of a private or public document where there is a denial of the existence and contents then in that case it would be necessary to prove such document by way of the ordinary method of proof of documents and their contents. It matters not that the document is a public document. The Bombay High Court has in Om Prakash Berlia v. Unit Trust of India [8] held that even a public document requires proof in the ordinary course and it is not that a public document is proved by its mere production by a public authority where the contents are disputed. In that case it was held: (SCC Online paras 13, 14 and 26)
“13. It will have been noticed that the production of certified copies under the provisions of Section 63 is a means of leading secondary evidence. Secondary evidence can, obviously, be led only of what the document states not as to whether what the document states is true. Under Section 65(e), secondary evidence may be given when the original is a public document within the meaning of Section 74 and only a certified copy of the public document is admissible. Secondary evidence of a public document so led only proves what the document states, no more. In other words, he who seeks to prove a public document is relieved of the obligation to produce the original. He can produce instead a certified copy. All other requirements he must still comply with.
In case of disputed documents the first step is producing the original or primary direct evidence[10] and then leading the evidence of the person who has made the original unless of course that person is no longer available. In such a case the first step is producing the original and annexing it with the compilation of documents and then leading the evidence of the person who has made the document or been party to its formation. In case the document is available in original with the party proposing to prove it as for example an agreement retained in original by him, there appears no difficulty. However, in case the document is lost then the only way is to lead secondary evidence of the same through a copy made in accordance with Sections 63 and 65 of the Act. However in the case for example of a letter which is written by Mr. A to Mr. B which is sought to be proved by Mr. A, first that letter in original will have to be produced. This can be done by Mr. A issuing a notice to produce to Mr. B because obviously having written the letter to Mr. B the letter would not remain with him. In response if Mr. B disputes that the letter was even received by him one would have to prove that the letter was duly received by Mr. B by giving evidence of proof of delivery by registered post AD or evidence of the fact that Mr. B had responded to the letter or had referred to that letter in some other later of correspondence or it was hand delivered. In such a case then appropriate secondary evidence would have to be led while annexing to the compilation instead of an original a copy which conforms with the requirements of Section 63 of the Act. In both the above cases what is achieved is only the first stage of obtaining the requisite document and making it a part of the compilation relied on. In both cases the only thing proved by the above process is the existence of the document.
However for exhibition of the document it is necessary to depose to the truth of contents of the document i.e. what is said in the agreement or what was written in the letter is true and correct.
In both the cases what would be necessary is to prove the contents of the document because what is important is not that something is really stated in the document but whether what is stated in the document is correct. That can only be proved by somebody who knows about the document itself or who was a party to making the document or had verified the document or approved it or signed it with knowledge of its contents. This is because evidence must be direct primary evidence under Sections 60 to 62 of the Act.
The next step after the production of the document in original or as a copy (secondary evidence) in the compilation of documents is to lead appropriate evidence of the truth of the contents of the document sought to be proved. That needs to be done in the aforesaid example by the evidence of a person (who was a party to or had been intricately involved with or drafted/gave instructions to make the agreement or letter) stating so in the witness box or in an affidavit of examination- in- chief about these facts. It is not enough to only depose that the letter or agreement is signed by the witness, he must also depose to some particulars of the letter or agreement showing he is personally aware about what is mentioned therein. As an example if Mr. A only deposes that he signed the letter but that it was written by somebody else and he had not verified its contents then the letter doesn’t stand proved because all that Mr A is able to do and say is that he signed such a letter. This only proves his signature and at best the existence of the same. What is crucial is the contents of the letter and that can only be proved by the person who authored the letter on the basis of knowing the facts stated in the letter. Therefore what is examined by the court and what must be shown if the document is sought to be proved sufficiently for exhibition is to give direct evidence under Section 60 of the Act by the person who is aware of the facts of the case. The person who gives evidence must not only give direct evidence but he must also have the necessary knowledge about what is stated in the document which he is trying to prove. This is because what is necessary is that evidence cannot be hearsay evidence. I will shortly deal with this. To prove the contents of a document what is needed is to prove by direct evidence of the person concerned with the transaction (for public and private documents) the actual facts stated in the document. A reading of the evidence must show that the witness has personal knowledge of what the contents of the letter or agreement talk of and can depose sufficiently thereon. In case the evidence shows the witness attempting to prove the document is not aware of the contents and another person is aware of it the document will not be exhibited till that other person has deposed on the contents of the document. It is only once this is done that the document can be stated to be proved sufficiently for exhibition. Care must be taken to see that someone who can vouchsafe for the contents must depose to the documents. The Supreme court in Narbada Devi Gupta v. Birendra Kumar Jaiswal[11] has held: (SCC p. 751)
“16…. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”…”
One of the best and most instructive cases on proof of documents is that of Madholal Sindhu v. Asian Assurance Co. Ltd.[12] It is therein held that it is not sufficient to merely prove that somebody signed a document and the witness could prove or identify the signature, what is required is to prove that the person who signed the document was aware of the document and its contents and the transaction. In that case it was held as follows: (SCC Online paras 4-6, 8 & 9)
“4. Mr. Somjee argued that under the provisions of the Evidence Act all facts except the contents of documents could be proved by oral evidence, that so far as the contents of documents are concerned, they could be proved either by primary or secondary evidence, that the primary evidence of the documents meant the documents themselves produced before the court, and that if the documents were 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 was in that person’s handwriting need be proved to be in his handwriting. He, therefore, urged that the said various documents which he sought to prove before the court need only be proved to be in the handwriting of the persons making the same and if he succeeded in doing so by calling the evidence of persons acquainted with the handwriting of the persons who signed or wrote out the said several documents, he was entitled to put them in and argued that the contents of the said documents were also proved by him.
The principles in Madholal case[14] stand the test of time even today and this judgement has even been referred to in a later judgement of the Bombay High Court Sir Mohammed Yusuf v. D[15] where it is quoted with approval. The following passages are relevant:
“13. Mr. Peerbhoy contended that the entire document (Ext. 28) could not be admitted in evidence inasmuch as D had only proved the signature below the document. The Tribunal gave a ruling stating that in their opinion proof of the signature was not proof of the contents of the document, which bears the signature. They added that “it would be open to Mr. Peerbhoy to contend that despite the admission of the document on record what was proved was that the document bore the signature of Abreo and not that their contents were true”. In their report, the tribunal have stated that proof of the signature does not amount to proof of the contents of Ext. 28. Nor did it mean that even if Abreo had received that copy letter, he showed it to Abdul Rahman at any time. According to the Bar Council Tribunal, the evidentiary value of Ext. 28, even if it is held proved, was almost nil. As pointed out above, the mode of proving Ext. 28 that was initially undertaken by D was to identify the signature of Abreo as a person who was acquainted with Abreo’s handwriting (vide Section 47 of the Evidence Act). The ruling given by the tribunal may hold good so far as the question of the proof of the contents of Ext. 28 is concerned, (we will discuss this question presently at some length), if the only mode of proof adopted by D was to identify the signature of Abreo. It certainly does not apply to the second mode of proof which D sought to adopt, for the first time, in his further examination-in-chief before the Bar Council Tribunal by saying that Abreo put his signature below Ext. 28 in his presence, for this amounts to proof of the execution of the document. We are not, however, disposed to accept the improved version of D, when he tried to say, for the first time before the Tribunal, that he had seen Abreo putting his signature below Ext. 28. The mode of proof that D adopted in the first instance fell within the purview of Section 47 of the Evidence Act, that is to say, it amounted to his opinion about the signature of Abreo on the basis of his acquaintance with the latter’s hand-writing. The Bar Council Tribunal had probably in their mind the decision of Bhagwati, J. (as he then was) in Madholal Sindhu v. Asian Assurance Co.[16] The Advocate General has strongly relied upon this judgment and contended that proof of the signature below the document does not amount to proof of the contents of the document. In that case an attempt was made to prove through the sub-accountant in the head office of the Bank several documents consisting of letters and documents executed by Jamnadas in favour of the bank and also the resolutions of the executive committee of the bank and the letters addressed by the bank to Nissim by proving the handwriting in which all the documents purported to have been written. Bhagwati, J. characterised this attempt “as an attempt to prove the handwriting of these various documents without calling in evidence the persons who had written the same or who were acquainted with the contents thereof so that they might not be subjected to cross-examination at the hands of the counsel for the official Assignee. The witnesses who could have proved those documents and the contents thereof would have been Deshpande, the managing director of the bank. Paranjape the Secretary of the bank, Jamnadas and Nissim”. Bhagwati, J. referred to Section 67 of the Evidence Act and observed:
“Section 67 of the Evidence Act only permits the proof of the signature or handwriting of the person signing or writing the document to be given 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 section does not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof insofar as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature of handwriting of the said various documents could have established that those documents were signed or writen in the handwriting of Deshpande, Paranjape or Jamnadas; but the matter could rest there and would carry the plaintiff no further.”
“We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact the evidence relating thereto may be direct, or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in Sections 45 and 47 of the Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship. In an appropriate case, the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the Courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That, however, is a matter which we cannot permit to be canvassed before us”.
“The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Evidence Act. It may also be proved by internal evidence afforded by the contents of the document…”
It is therefore necessary in the case of disputed documents to therefore prove the contents of the documents through the evidence of persons/witnesses who have authored the documents or are parties to it or are aware of the facts personally stated therein.
Another reason for following the practice of having a witness with sufficient personal knowledge deposing about the documents sought to be proved is that even if the documents are exhibited the task is not yet done. This is because the person deposing will also be subject to cross-examination and in case it is found during the cross-examination that the person giving evidence about the document knows nothing about how it was made, where the details provided in the document are obtained from, what are the back up or supporting documents etc. then in that case the weightage to be given to such document even though exhibited in the first instance would be severely diminished.
PROOF OF A DOCUMENTS THE ORIGINALS OF WHICH ARE LOST OR UNTRACEABLE OR IN POSSESSION OF AN ADVERSE PARTY
Here the first thing which needs to be established is that the document is lost and despite diligent search the same is not available. This will have to be proved and specifically averred in evidence. Secondary evidence cannot be allowed in absence of this proof of loss of the document. The Supreme Court in Benga Behera v. Braja Kishore Nanda[22] held that: (SCC pp. 737-38)
“29. Another vital aspect of the matter cannot also be ignored. Respondent 1 in his evidence accepted that he had obtained the registered will from the office of the Sub-Registrar upon presenting “the ticket” on 30-1-1982. After receipt of the will, he had shown it to Sarajumani Dasi. He did not say how the will was lost, particularly when he had not only shown the original will to the testatrix but also had consulted a lawyer in relation thereto. No information was lodged about the missing of the document before any authority. Even the approximate point of time the will was lost, was not stated. In his cross-examination, he stated, “I cannot say where and how the original will was lost.”
“65. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;”
Loss of the original, therefore, was required to be proved.
In case a document is in possession of the opposing party the proper practice to be followed will be to give a notice to produce the document to such party in possession of the document and only after the party refuses to provide/produce the document can secondary evidence be resorted to[23].
Thereafter the mode of proof will be the same as for other disputed documents. Additionally appropriate evidence about how the copy which is secondary evidence was obtained and made from the original will also have to be led. In other words evidence of the manner in which the copy is made will have to be led in accordance with the manner set out in Section 63 of the Act. As an example if a letter sought to be proved is lost evidence would have to be given first of the efforts made to locate the same unsuccessfully and then of the manner in which the copy now relied upon in the compilation was obtained or made and the process by which it was made e.g. photocopy. The necessary averment of the witness apart from the factum of his failure despite diligent search to locate the original will have to be to the effect that at the relevant time the original document was available and a copy was made from the original and the copy in the compilation was compared by him with the original and found to be an accurate reproduction of the original document.
The next stage is for the witness deposing to be able to withstand cross-examination by answering relevant questions relating to document. Take the following example (in a dispute on electricity consumption) and assume there is an electric bill, a disputed document exhibited since the public authority has produced it from its record maintained by it in the normal course of business. Since there is a dispute about consumption of units even though the bill itself in original is produced all that is proved by production is that such a bill was made by the public authority and such and such number of units were consumed as stated therein. However what needs to be seen is whether there is a correct recording of the consumption of units in the public document that is the bill. Mere production of the document is not enough what is needed in such a case further is for some person to give evidence of the public document to the extent that the document is substantiated with supporting documents such as meter reading cards and supporting data maintained in the office of the authority. In such a case if the witnesses states that the bill was prepared by him on the basis of data cards maintained showing the consumption from month to month and he had verified the consumption from month to month then in that case if the data cards showing the consumption are also produced the contents of the bill will stand proved, of course subject to cross-examination not dislodging the correctness of the consumption shown in the document. Therefore what is needed apart from successful exhibition of the document is for a witness to stand the test of stringent cross-examination. It is not merely somebody stepping into the box and saying the contents are true and correct that person must withstand cross-examination. It is only after that person has withstood the test of cross-examination that the document will be deemed to be accepted by the court sufficient to sign a judgement in favour of the party claiming under the document. Mere exhibition of a document does not dispense with the proof of the truth of its contents. The Supreme Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal[24]held: (SCC p. 751)
“16. Reliance is heavily placed on behalf of the appellant on Ramji Dayawala & Sons (P) Ltd.[25] The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court.”
DOCUMENTS 30 YEARS’ OLD
There are also documents which are of such old vintage that it is very difficult and sometimes impossible to produce the maker of the document and in this case the provisions of Section 90 of the Act come to the rescue when the document is more than 30 years’ old. However, this rule considering the fact that most cases coming up for trial are 30 years after the transactions cannot be the sole basis for admitting documents and in such cases the court would look at the surrounding circumstances before exhibiting the document. This means the court would look as if there, is for example, any correspondence contemporaneously that supports what is stated in the document sought to be proved. If the document is a letter, has there been any response to it disputing the contents of the letter, the court may also take into consideration what is stated about the letter in the plaint or in a written statement. Exhibition of such documents which do not have persons who can depose to them is extremely difficult and even if they are exhibited (rarely) the evidentiary value is limited unless its contents are admitted in some other parallel documents. The section does not dispense with proof of the contents. The judgement of the Supreme Court in Gangamma v. Shivalingaiah[26] elucidates the position: (SCC p. 360)
“6. We agree with the learned counsel. The purported substantial question of law was formulated by the High Court on a wrong premise. Section 90 of the Evidence Act has been misconstrued and misinterpreted by the High Court. Section 90 of the Evidence Act reads as under:
“90. Presumption as to documents thirty years old.—Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”
It is also to be noted that the presumption of Section 90 of the Act does not apply to copies of documents as held in Tilak Chand Kureel v. Bhim Raj[27]. The relevant passage is as under:
“4. On behalf of the appellant it was contended that Exts. 2, 18 and 19 were not admissible in evidence and the High Court was wrong in relying upon these documents. It was said that the presumption under Section 90 of the Evidence Act was not applicable as copies were produced and not the original documents. In our opinion this argument is well-founded. In Basant v. Brijraj[28] it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst of Munshi Nath Prasada. [29] In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exts. 2, 18 and 19.”
PERSONAL KNOWLEDGE
The last issue which needs to be addressed to prove documents contents through a witness pertains to the witness having direct knowledge and giving direct evidence rather than a witness relying upon something which he claims he heard. The rule of inadmissibility of hearsay evidence kicks in. Evidence needs to be evidence of the person who is involved in and familiar with the transaction. In this behalf a recent judgement considering the law on the issue was delivered by the Bombay High Court (G. S. Patel, J.) in Harish Loyalka v. Dileep Nevatia[30]. It is inter alia held therein that the provisions of Order 18 Rule 4 of the Code of Civil Procedure, 1908 (“CPC”) require that the “examination-in-chief” shall be on affidavit. This means that the affidavit in lieu of examination-in-chief can contain, and contain only, such material as is properly admissible in examination-in-chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contains arguments and submissions is neither an affidavit within the meaning of Order 19 Rule 3 CPC, nor an affidavit in lieu of examination-in-chief within the meaning of CPC Order 18 Rule 4.
In that judgment it was also held:
“13. As Mr. Joshi points out, under Section 5 of the Evidence Act, evidence may be given in a suit of every fact in issue or of a relevant fact, and of no other. That section is specific and unambiguous. Material that is ex facie entirely irrelevant, hearsay, and certainly material that is in the nature of submissions and arguments must be excluded.”
To sum up the aforesaid are some of the important principles and aspects of law to bear in mind when preparing for a hearing for exhibiting and proving documents.
* Advocate, High Court, Bombay. Assisted by Sheetal Parkash, Arjun Prabhu and Mayur Agarwal
