1. The Respondent herein filed a suit for ejectment (Civil Suit No.

423-
A/2002 on the file of 3rd Civil Judge, Class-II, Jabalpur transferred and
renumbered as C. S. No. 20-A/2004 on the file of 13th Civil Judge,
Class-II, Jabalpur) against the petitioners herein tinder the provisions
of the M.P. Accommodation Control Act. In the said suit, the
Respondent filed an application under Section 65 of the Evidence Act,
1872 ('Act' for short) seeking permission to lead secondary evidence
in regard to the sale-deed dated 5-11-1997 executed in her favour by
the previous owners (Ramdas and others) by producing a certified
copy of the deed.
2. The Respondent claims that the original sale-deed is filed in F.A.
No. 337/2003 pending on the file of this Court. It is also alleged that
the execution of the said sale-deed by Ramdas and others in her
favour was not disputed by the petitioners herein (tenants), but
specifically admitted in the earlier suit filed by them (C.S. No. 104-A/
2002). The said suit was filed by the petitioners herein for specific
performance of an alleged agreement of sale dated 2-5-1996
executed by the previous owner Ramdas in favour of Vijay Singh Rana
(of whom they are the legal heirs) and for a declaration that the said
sale deed executed by Ramdas and others in favour of the respondent
herein was void. The said civil suit was dismissed by judgment and
decree dated 7-8-2003, which is challenged by petitioners herein in
F.A. No. 337/2003.
3. The petitioners herein opposed the said application. They
submitted that the Respondent herein ought to have taken steps to
summon the original sale-deed instead of trying to produce a certified
copy as secondary evidence.
4. The trial Court, by order dated 22-2-2005, allowed the said
application on two grounds. The first ground is that as the original
sale deed had been produced on the file of F.A. No. 337/2003, it will
be time consuming to summon the said deed. The second ground is
that the sale deed being a public document, certified copy thereof
was admissible in evidence. The said order of the trial Court is
challenged in this petition.
5. Before the learned Single Judge, the petitioners herein relied on
three decisions of learned Single Judges of this Court, Jagannath
Pershad Nigam v. Visheshwar Prasad 1977 (1) MPWN Item 210,
Bhagwat Saran v. Man Singh 1986 (1) MPWN Item 59 and Gopal
Sharma v. Savitri Devi Ojha 1994 (1) MPWN Item 192 in support of
their contention that a sale deed is not a public document and when
the original is not lost or destroyed, it cannot be proved by merely
tendering certified copy thereof. On the other hand, the Respondent-
landlord relied on the decision of a learned Single Judge of this Court
in Nawab Saheb v. Firoz Ahmad 2002 (5) MPLJ 438(sic) : 2003 AIHC
544, holding that a registered sale deed is a public document,
purporting to rely on an earlier decision of another Single Judge in
Vasudev v. Tikaram 1994 (1) MPWN Item 198. In view of the divergent
views, the learned single Judge (K. K. Lahoti, J.) has referred this
petition to a Division Bench for decision, stating that the following
two questions arise for consideration.
(i) Whether certified copy of a registered sale deed obtained from the
office of Sub-Registrar is a public document ?
(ii) Whether the aforesaid document may be received in evidence as a
public document without any proof of document by primary
evidence, as required under Section 64 of the Evidence Act ?
6. On the points urged by both sides and the reference by the learned
Single Judge, the following points arise for consideration:
(i) Whether a sale deed (duly registered) is a public document ?
(ii) Whether a certified copy of a sale-deed issued by the Registering
Officer is a public document ?
(iii) Whether a certified copy of a public document can be received in
evidence without any further proof ?
(iv) What is the effect and efficacy of producing and marking a
certified copy of the sale deed ?
(v) Whether the order of the trial Court requires interference ?
Re : Points (i) and (ii)
7. The answer to these two questions can be found in the Evidence
Act.
7.1 Chapter V of the Act deals with Documentary Evidence. Section
61 provides that contents of documents may be proved either by
primary or by secondary evidence. Section 62 defines primary
evidence as meaning the document itself produced for inspection of
the Court. Section 63 defines Secondary evidence as meaning and
including among others certified copies given under the provisions of
the Evidence Act. Section 64 provides that documents must be proved
by primary evidence except in the cases mentioned in the subsequent
sections.
7.2 Section 65 deals with cases in which secondary evidence relating
to documents may be given. The relevant portion of Section 65 is
extracted below:
Secondary evidence may be given of the existence, condition or
contents of a document in the following cases:
(a) when the original is shown or appears to be in the possession or
power -
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the
Court, or of any person legally bound to produce it, and when, after
the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have
been proved to be admitted in writing by the person against whom it
is proved or by his representative in interest;
(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;
(d) when the original is of such nature as not to be easily movable;
(e) when the original is a public document within the meaning
of Section 74;
(f) when the original is a document of which a certified copy is
permitted by this Act, or by any other law in force is, to be given in
evidence....
(g) ...
Section 65 further provides that in cases (a), (c) and (d), any
secondary evidence of the contents of document is admissible; in
case (b), the written admission is admissible; in case (e) and (f), a
certified copy of the document, but no other kind of secondary
evidence, is admissible.
7.3 Section 67 relates to proof of signature/handwriting. It is
extracted below:
67. Proof of signature and handwriting of persons alleged to have
signed or written document produced : If a 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 handwriting must be proved to be in his
handwriting.
7.4 Sections 74 and 75 define public documents and private
documents respectively. They are extracted below:
74. Public documents - The following documents are public
documents -
(1) documents forming the acts or records of the acts -
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive of any part of
India or of the Common Wealth or of a foreign country;
(2) public records kept in any State of private documents.
75. Private documents - All other documents are private.
8. A deed of sale is a conveyance. A deed of conveyance or other
document executed by any person is not an act nor record of an act of
any sovereign authority or of any official body or tribunal, or of any
public officer, legislative, judicial and executive. Nor is it a public
record kept in a State of any private documents. A sale deed (or any
other deed of conveyance) when presented for registration under
the Registration Act, is not retained or kept in any public office of a
State after registration, but is returned to the person who presented
such document for registration, on completion of the process of
registration, An original registered document Is not therefore a public
record kept in a state of a private document, Consequently, a deed of
sale or other registered document will not fall under either of the two
classes of documents described in Section 74, as 'public documents'.
Any document which is not a public document is a private document.
We therefore have no hesitation in holding that a registered sale deed
(or any other registered document) is not a public document but a
private document.
9. This position is made abundantly clear in Gopal Das v. Shri
Thakurji AIR 1943 Privy Council 83, wherein the Privy Council
considering the question whether a registered receipt is a public
document observed thus:
It was contended by Sir Thomas Strongman for the respondents that
the receipt comes within para 2 of Section 74, Evidence Act, and was
a "public document"; hence under Section 65(e) no such foundation is
required as In cases coming within Clauses (a), (b) and (c) of that
section. Their Lordships cannot accept this argument since the
original receipt, of 1881 is not "a public record of a private
document". The original has to be returned to the party. A similar
argument would appear at one time to have had some acceptance in
India but it Involves a misconstruction of the Evidence Act and
Registration Act and later decisions have abandoned it.
(Emphasis supplied) We may also refer to the following passage from
Ratanlal's Law of Evidence' (19th Edition page 237):
Public document, (clause (e)] - This clause is intended to protect the
originals of public records from the danger to which they would be
exposed by constant production in evidence. Secondary evidence is
admissible in the case of public documents mentioned in Section 74.
What Section 74 provides is that public records kept in any state of
private documents are public documents, but private documents of
which public records are kept are not in themselves public
documents. A registered document, therefore, does not fall under
either Clause (e) or (f). The entry in the register book is a public
document, but the original is a private document.
10. What then is a "public record, kept in any state of private
documents" referred to in Clause (2) of Section 74? The answer may
be found in the Registration Act, 1908, 10.1 When a document is
presented for registration and the person executing it appears and
admits execution, Section 35 of the Registration Act, requires the
Registering Officer to register the document as directed in Sections
58 to 61 of the said Act.
10.2 Section 51 relates to Register Books to be kept in the registration
offices. Relevant portions thereof extracted below:
51. Register-books to be kept in the several offices:
(1) The following books shall be kept in the several offices hereinafter
named, namely:
A. In all registration offices -
Book 1, "Register of non-testamentary documents relating to
immovable property".
Book 2, "Record of reasons for refusal to register".
Book 3, "Register of wills and authorities to adopt", and Book 4,
"Miscellaneous Register".
B. In the offices of Registrars -
Book 5, "Register of deposits of wills".
(2) In Book 1 shall be entered or filed all documents or memoranda
registered under Sections 17, 18 and 89 which relate to immovable
property, and are not wills.
XX XX XX XX It is clear from Section 51 that all deeds relating to
immovable property of which registration is compulsory
under Section 17 or of which registration is optional under Section
18 (and the orders/certificates/instruments enumerated in Section
89) are entered or filed in Book 1 kept by the Registering Officers. The
word "entered or filed" in Book I means the verbatim copying of the
deed in the book or filing of a complete copy of the deed, with all
endorsements and certificates in, Book 1. In fact, Section 52 requires
that every document admitted to registration shall be copied in the
Book appropriated therefor.
10.3 Section 57 requires the Registering Officers to allow inspection of
Books No, 1 and 2 and indexes relating to Book No. 1 and to give
certified copies thereof. The relevant portion of the said Section is
extracted below:
(1) Subject to the previous payment of the fees payable in that behalf,
the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be
at all time open to inspection by any person applying to inspect the
same; and, subject to the provisions of Section 62, copies of entries in
such books shall be given to all persons applying for such copies.
XXX XXX XXX (5) All copies given under this section shall be signed and
sealed by the registering-Officer, and shall be admissible for the
purpose of proving the contents of the original documents.
(Emphasis supplied) 10.4 Section 60 requires the Registering Officer
to endorse on the document presented for registration, on
completion of the formalities of registration, a certificate containing
the word 'registered'. Sub-section (2) of Section 60 provides thus:
60(2) Such certificate shall be signed, sealed and dated by the
registering officer, and shall then be admissible for the purpose of
proving that the document has been duly registered in manner
provided by this Act, and that the facts mentioned in the
endorsement, referred to in Section 59 have occurred as therein
mentioned.
(Emphasis supplied) 10.5 Section 61 deals with copying of
endorsements and certificate and return of document. It is extracted
below:
(1) The endorsements and certificate referred to and mentioned
in Sections 59 and 60 shall thereupon be copied into the margin of
the Register Book, and the copy of the map or plan (if any) mentioned
in Section 21 shall be filed in Book No. 1.
(2) The registration of the documents shall thereupon be deemed
complete, and the document shall then be returned to the person
who presented the same for registration, or to such other person (if
any) as he has nominated in writing in that behalf on the receipt
mentioned in Section 52.
(Emphasis supplied)
11. It is clear from the above that Book 1 maintained in the
Registration Offices (a Register where all non-testamentary
documents relating to immovable property are copied, entered or
filed) is a public record kept in a State of private documents and
therefore a public document. When any person applies for the
certified copy of document registered in the office which is
entered/filed in Book 1, a certified copy of the document as
copies/filed in Book 1 is furnished to the applicant. Such certified
copy of any entries in that public record (Book 1) is a certified copy of
a public document. But such certified copy of the registered
document extracted from Book 1 is not itself a public document. It is
really a true copy of a copy (copy of original deed entered in Book 1).
12. We therefore answer points (i) and (ii) as follows:
(i) A Registered document (Deed of sale etc.) is not a public
document. It is a private document.
(ii) Book 1 kept in the Registration Offices under the Registration Act,
where the Registered documents (private documents) are copied,
entered or filed, is a public document.
(iii) A certified copy of a registered document, copied from Book 1
and issued by the Registering Officer, is neither a pubic document, nor
a certified copy of a private document, but is a certified copy of a
public document.
Re : Question (iii);
13. The next question is whether a certified copy of a public
document, issued by a registering officer, can be received in evidence
without any further proof.
14. We may refer to the relevant portions of Sections 76, 77 and 79 of
Evidence Act extracted below in this behalf:
76. Certified copies of public documents - Every public officer having
the custody of a public document, which any person has a right to
inspect, shall give that person on demand a copy of it on payment of
the legal fees therefore, together with a certificate written at the foot
of such copy that it is a true copy of such document or part thereof,
as the case may be...and such copies so certified shall be called
certified copies.
77. Proof of documents by production of certified copies - Such
certified copies may be produced in proof of the contents of the
public documents or parts of the public documents of which they
purport to be copies.
79. Presumption as to genuineness of certified copies - The Court
shall presume to be genuine every document purporting to be a
certificate, certified copy or other document, which is by law declared
to be admissible as evidence of any particular fact and which purports
to be duly certified by any officer of the Central Government or of a
State Government....
15. We have already held that a certified copy of a registered
Instrument/document issued by the Registering Officer, by copying
from Book 1, is a certified copy of a public document. It can therefore
be produced in proof of the contents of the public document or part
of public document of which it purports to be a copy. It can be
produced as secondary evidence of the public document (entries in
Book I), under Section 65(e) read with Section 77 of the Act without
anything more. No foundation need be laid for production of certified
copy of secondary evidence under Section 65(e) or (f). But then it will
only prove the contents of the original document, and not be proof of
execution of the original document. (Vide Section 57(5) of
Registration Act read with Section 77 of Evidence Act). This is because
registration of a document is proof that someone purporting to be 'X'
the executant admitted execution, but is not proof that 'X' executed
the document, We will elaborate on this aspect when dealing with
Point No. (iv).
Re: Question (iv)
16. The next question is whether producing and making of a certified
copy of a sale deed, would amount to proving the sale-deed itself. If
not, what is its effect. We will first refer to the decisions and Treatises,
bearing on this aspect.
16.1. In Karuppanna Gounder v. Kolandaswami Gounder , a Learned
Single Judge of the Madras High Court (Govind Menon, J, as he then
was) held as follows:
Section 57 of the Indian Registration Act deals, among other things,
with the grant of certified copies, and Sub-section (5) lays down that
all copies given under that section shall be signed and sealed by the
registration officer and shall be admissible for the purpose of proving
the contents of the original documents. But the law is that a certified
copy of what has been copied in the books of registration is
admissible to prove the contents of the original document . only
when a case is made out for introduction of secondary evidence, i.e.
by proof of the loss of the original or where a original is withheld by a
party in whose possession it is or is presumed to be. In this case the
plaintiffs have done all they could by giving notice to defendants 3
and 4 to produce the original which notice has not been complied
with. Therefore, the requisite essentials for the adducing of secondary
evidence have been properly complied with. When once the case for
the introduction of secondary evidence is made out, certified copy
got from the Registrar's office can be admitted under Section 57, Sub-
section (5) of the Indian Registration Act without other proof than the
Registrar's certificate of the correctness of the copy and shall be taken
as a true copy. It seems to me that the plaintiffs have satisfied the
Court that the necessary prerequisites for the introduction of
secondary evidence as contemplated under Sections 65 and 66 of the
Evidence Act have been made out. When once it is proved that the
party is entitled to adduce secondary evidence, then the question
arises. "What is the mode of proof of the certified copy ?" As stated
already under Section 57(5) of the Indian Registration Act, a certified
copy obtained from a Registrar's office shall be admissible for the
purpose of proving the contents of the original document. That
means that the mere production of a certified copy without any
further oral evidence to support it would be enough to show what the
original document obtained. That a registration copy is the copy of a
public document contemplated under Section 74, Sub-section (2) of
the Indian Evidence Act, is indisputable and the copy of such a
document is a certified copy of a public document under Section 76 of
the Indian Evidence Act.
16.2 In Padmanabhachari v. Annamraju Silapathirao 1954(2) Madras
Law Journal 75, the Andhra Pradesh High Court considered a certified
copy of mortgage bond dated 18-11-1876 (marked Ex. P/1). In that
case, before the trial commenced, the plaintiff had issued a notice
requiring defendants to admit the aforesaid mortgage deed. On the
said notice, the first defendant's counsel had made an endorsement
to the effect that the genuineness of the copy was admitted, it was
subsequently argued by the first defendant that only the genuineness
of the certified copy as a copy of the copy kept in the Registrar's office
was admitted, and that did not amount to an admission that it was a
true copy of the original and therefore the plaintiff had to make out a
case for the admission of the copy as secondary evidence of the
original. It was also contended that the said admission did not absolve
the plaintiff from proving the execution of the mortgage deed.
Considering the said submission, K. Subba Rao, C. J. (as he then was)
held as follows:
In my view, secondary evidence of the contents of Exhibit P-1 is
admissible both under Section 65(b) as well under Section 65(e). The
first defendant admitted the genuineness of the certified copy. That is
an ad mission-learned Counsel for the appellant does not dispute this
position of the existence, condition or contents of its original, i.e. the
copy of the mortgage document maintained in the Registrar's Office.
If so much was granted, Section 57(5) of the Registration Act makes
the said copy admissible for the purpose of proving the contents of
the original document itself. A combined reading of the provisions
of Section 65(b) of the Evidence Act and Section 57(5) of the
Registration Act may be put thus. By reasons of the admission made
by the first defendant of genuineness of the certified copy within the
meaning of Section 65(b) of the Evidence Act, the certified copy
became admissible in evidence as secondary evidence under Section
65. By reason of Section 58(5) of the Registration Act, the said copy
becomes admissible for the purpose of proving the contents of the
original document itself. I would also hold that the certified copy is
also admissible under Section 65(e) and (f) of the Evidence Act.
Secondary evidence may be given, if the original is a public document
within the meaning of Section 74. The definition of a public document
under Section 74 takes in public records kept in any State of private
documents. The Registrar's Office certainly keeps a public record of all
sale deeds registered in that office. Section 76 enables an officer
having the custody of a public document to give a certified copy. The
certified copy is therefore admissible in evidence both under Section
65(e) and (f) of the Evidence Act. The certified copy therefore is
secondary evidence of the public record of the mortgage deed kept in
the Registrar's Office. Again by invoking Section 57(5) the said copy
becomes admissible, for the purpose of proving the contents of the
original document itself. I would therefore hold that the certified copy
is admissible in evidence. But this will not dispense with the proof of
the execution of Exhibit P-I. (Emphasis supplied) 16.2-3 A Division
Bench of Nagpur High Court in Kashinath Shankarappa v. The New
Akot Cotton Ginning and Pressing Co. Ltd. AIR 1951 Nagpur 255, while
considering the question whether a copy of a balance sheet sent to
the Registrar of Companies after the general meeting or the share
holders of a Company is admissible in evidence, observed thus:
Section 65, Evidence Act sets out the cases in which secondary
evidence is admissible. It was argued that this falls under Clause (e)
"when the original is a public document within the meaning
of Section 74" because Section 74 states that the following are public
documents, namely, "(2) public records kept in British India of private
documents". The argument is not well founded. Section
65 applies Section 74 only when the original is a public document. It
would, for example, be absurd to contend that a private sale deed or
mortgage can be proved by the production of a certified copy
obtained from the Sub-Registrar's office and nothing more.
(Emphasis supplied) 16.4 In Subudhi Padhan v. Raghu Bhuvan , a
learned single Judge of the Orissa High Court, held that marking of a
certified copy of a registered mortgage deed which is admissible as ,
secondary evidence does not dispense with the proof of actual
execution. He observed:
Again by invoking Section 57(5) the said copy becomes admissible for
the purpose of proving the contents of the original document. But
this will not dispense with the proof of the execution of the
same...the certified copy of the mortgage-bond may be admissible in
evidence as secondary evidence but that does not dispense with the
proof of actual execution.
16.5 In Roman Catholic Mission v. State of Madras , the Supreme
Court held that -
Where the originals were not produced at any time nor was any
foundation laid for establishment of the right to give secondary
evidence, copies of the original not admissible in evidence.
16.6 Woodroffe and Ameer Ali's Law of Evidence (14th edition, Vol. 2)
explains that matter thus:
Under this Clause (that is Clause (2) of Section 74), entries of the
copies of private documents in Book 1, 3 and Book 4 of the
Registration Office being public records kept of private documents are
public documents, and as such may be proved by certified copies, that
is certified copies may be offered in proof of those entries. But
neither these entries nor certified copies of these entries, are
admissible in proof on the contents of the original documents so
recorded unless secondary evidence is allowable under the provisions
of this Act. (at page 1710) a registered deed of sale is not a document
of which a certified copy is permitted by law to be given in the first
instance without having been introduced by other evidence. Section
57 of the Registration Act only shows that when secondary evidence
has in any way been introduced, as by proof of the loss of the original
document, a copy certified by the Registrar shall be admissible for the
purpose of proving the contents of the original; that is, it shall be
admitted without other proof than the Registrar's certificate of the
correctness of the copy, and shall be taken as a true copy, but that
does not make such a copy of a document which may be given in
evidence without other evidence to introduce it...and although such a
copy may be taken as a correct copy of some document registered in
the office, this circumstance does not make that registered document
evidence or render it operative against the persons who appear to be
affected by its terms. A document registered in and brought from a
public registry office, requires to be proved when it is desired that it
should be used as evidence against any party who does not admit it
quite as much as if it came out of private custody, (at page 1612).
17. The position therefore is that a certified copy of a sale deed issued
by the Registration Officer under the Registration Act can be
produced and marked as secondary evidence of a public document
(that is Entries in Book 1 maintained under Section 51 of the
Registration Act containing the copy of the registered document).
Such certified copy issued by the Registration Officer in view of the
certificates copied therein and the certificate made while issuing the
certified copy will prove (i) that a document has been presented
before the Registration Officer for registration; (ii) that execution had
been admitted by the person who claimed to be the executant of the
document and (iii) that the document was thereafter registered in the
Registration Office and entered (copied) in Book 1. It is not however
proof of the fact that original sale deed was duly executed by the
actual person described as Executant. Production of a certified copy
of a public document under Section 65(e) or production of a certified
copy under Section 65(f) is completely different from production of a
certified copy as secondary evidence of a private document (for eg, a
sale deed under clauses (a), (b) and (c) of Section 65.
18. Proving execution of a registered sale deed (or any other
registered document which is not required by law to be attested) has
two steps. The first step is production of the original sale deed or lay
the foundation for letting in secondary evidence of the sale deed,
byway of certified copy of the sale deed, by showing the existence of
any of the circumstances mentioned in clauses (a), (b) and (c)
of Section 65. In other words, a certified copy can be offered as
secondary evidence of the original sale deed under Clause (a)
of Section 65, by establishing that the original is in the possession or
power of the person against whom the document is sought to be
proved, or in the possession or power of any person out of reach of or
not subject to the process of the Court, or in the possession of any
person who is legally bound to produce it, and such person (of the
three categories) does not produce it in spite of notice under Section
66 of the Act. A certified copy of the sale deed can also be offered as
secondary evidence under Clause (c) of Section 65, by showing that
the original is 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). Lastly a certified
copy can be offered as second evidence under Clause (b) of Section
65, where the existence, condition or contents of the (sic) has been
admitted in writing by the person against whom it is proved or by his
representative in interest, and such admission is proved.
18.1 The second step is to prove the execution of the deed (whether
what is produced in the original or certified copy or other secondary
evidence thereof given under Clause (a), (b) or (c) of Section 65) as
required by Section 67 of the Act, where the document is not one
which is required by law to be attested or as required by Section 68 of
the Act where the document is one which by law is required to be
attested. This is because registration is not proof of execution. A
private document cannot be used in evidence unless its execution is
admitted by the party against whom it is intended to be used, or it is
established by proof that it is duly executed. Due execution is proved
by establishing that the signature (or mark) in token of execution was
affixed to the document by the person who is stated to have executed
the document. This is normally done either (i) by examining the
executant of the document; or (ii) by examining a person in whose
presence the signature/mark was affixed to the document; or (iii) by
referring the document to a handwriting expert and examining such
expert; or (iv) by examining a person acquainted with
handwriting/signature of the person who is supposed to have
written/signed the document; or (v) by requesting the Court to
compare the signature of the executant in the document with some
admitted signature of the person shown as executant; or (vi) by
proving admission by the person who is said to have signed the
document, that he signed it.
18.2 If the person producing the certified copy of a registered
instrument, without establishing the existence of any of the grounds
under Clause (a), (b) or (c) of Section 65, seeks to mark the certified
copy, then it will not be secondary evidence of the original sale deed,
but only be secondary evidence of the entries in a public document,
that is the entries in Book 1 in the Registration Office which issued the
certified copy. Such certified copy marked without laying foundation
for receiving secondary evidence, though admissible for the purpose
of proving the contents of the original document, will not be proof of
execution of the original document.
18.3 Certain amount of confusion exists because a certified copy can
be produced as secondary evidence either under clauses (e) and (f)
of Section 65 or under clauses (a), (b) or (c) of Section 65. But the
difference is that a certified copy is the only mode of secondary
evidence that is permissible in cases falling under clauses (e) or (f)
of Section 65. But in the cases falling under clauses (a), (b) or (c), the
secondary evidence can be a certified copy in the case of a registered
instrument or by other modes described in Section 63 in regard to
unregistered documents. Be that as it may.
19. We may summarize the position thus:
(i) Production and Marking of a certified copy as secondary evidence
of a public document under Section 65(e) need not be preceded by
laying of any foundation for acceptance of secondary evidence. This is
the position even in regard to certified copies of entries in Book I
under Registration Act relation to a private document copied therein.
(ii) Production and marking of a certified copy as secondary evidence
of a private document (either a registered document like a sale deed
or any unregistered document) is permissible only after laying the
foundation for acceptance of secondary evidence under Clause (a), (b)
or (c) of Section 65.
(iii) Production and marking of an original or certified copy of a
document does not dispense with the need for proof of execution of
the document. Execution has to be proved in a manner known to law
(Section 67 and 68 and ensuing sections in chapter V of Evidence Act).
Position regarding conflicting decisions of this Court:
20. In Jagannath Pershad Nigam (Supra) (S. A. No. 91/1970 decided on
7-1-1977), the trial Court had held that a mortgage deed is a public
document and a certified copy of it is therefore admissible. This Court
held that the mortgage deed whether registered or unregistered is a
private document. It further held that a certified copy of the
mortgage deed cannot be admitted in proof of the transaction or the
deed, unless further evidence is given to prove due execution and
attestation of the mortgage (Note : Mortgage deed is a document
requiring attestation under Section 59 of the Transfer of Property Act,
whereas sale-deed is not a document requiring attestation).
20.1. In Bhagwat Saran (supra), another Learned single Judge held
thus:
Merely by filing a certified copy of the sale deed though they may be
permitted, they cannot be proved unless the originals are called for.
20.2. In Gopal Sharma (Supra), another Learned single Judge following
the decision in Jaganath Prashad Nigam held that certified copies of
private documents were not public documents and therefore certified
copies could not be accepted in secondary evidence.
20.3. These three decisions make it clear that a registered sale deed
or mortgage deed will be a private document and not a public
document.
21. In Vasudeo's (supra), a Learned single Judge observed thus:
It is also not disputed that the sale deeds were registered documents
and certified copies thereof were filed. In AIR 1979 Gauhati 14, it was
held:
A sale deed is a private document, but the record of the sale deed
kept in the office of the Sub-Registrar is a public record of that private
document and hence it falls within the category of 'Public document'.
Therefore, to prove the document, certified copy of the deed is
admissible. That apart when it is admitted without objection Court
cannot go behind that order.
I have already said earlier that the said two sale deeds were not the
basis of title or the basis of suit filed by the plaintiffs and plaintiffs did
not derive their title through those sale deeds. The result is that the
lower Court did not commit any mistake in overruling the objection
raised by the revisionists. If the documents were not the basis of suit
or the basis of the title to which the plaintiffs relied then certainly
certified copies of any sale deed could be used only for collateral
purposes and it did not require that strict proof and the documents
were not private documents.
A careful reading of the said decision shows that the Learned single
Judge did not hold that a registered sale deed is a public document.
On the other hand, he followed the judgment of the Gauhati High
Court where it is held that an original sale-deed is a private
document.
22. In Nawab Saheb 2003 AIHC 544 (supra), a learned single Judge
however proceeded on an erroneous assumption that Vasudeo had
held that a registered sale deed is a public document under Section
74 of the Evidence Act. The learned single Judge further held as
follows:
The registered sale deed was sought to be brought on record as an
additional evidence. Undoubtedly it is a certified copy of the sale
deed and, therefore, it is a public document. Hence, it can be
accepted as evidence.
The above observations make it clear that the Learned single Judge
proceeded on the basis that a registered sale-deed is a public
document. He also proceeded on the assumption that a certified copy
of a sale deed is also a public document. Both these assumptions are
erroneous and the said decision, to that extent, is not good law.
Re. Point (v)
23. In this case, the two reasons given by the trial Court for permitting
the plaintiff in the suit to let in secondary evidence by producing the
certified copy of the sale deed are unsustainable in law. The first is the
assumption by the learned trial Court that the original sale deed is a
public document and therefore the certified copy there of can be
marked as secondary evidence under Section 65(e), as already stated
above, is unsustainable in law.
24. Similarly, the ground that obtaining the original from the record of
F. A. No. 337/ 2003 may cause some delay and therefore certified
copy can be admitted is also untenable. Where the original is not lost
or misplaced and is admittedly available in the record of the FA No.
337/2003, steps ought to have been taken to secure the production of
the original. In Gopal Sharma (Supra), a learned single Judge of this
Court rightly held that "when the original document not only exists
but also available, allowing of the prayer only on the ground that
summoning of the document would be time consuming, cannot be
held to be a valid ground for accepting the document as secondary
evidence...." The order under challenge is therefore unsustainable.
25. In a suit for ejectment filed by the purchaser of a property against
the tenant, if the tenant admits that his landlord has executed a sale
deed in favour of a purchaser (Present landlord) in regard to the
property in his occupation, it may be sufficient for the present
landlord to merely mark the original deed or a certified copy of the
sale deed to prove the contents of the sale-deed. On the other hand,
if the tenant denies the execution of the deed of sale by his landlord
in favour of the person filing the suit for ejectment as purchaser, mere
production and marking of the original or certified copy of the sale
deed will not be sufficient to prove of the sale deed. In that event, as
noted above, it will be merely proof of the fact that an original
document was registered in the Registration Office, The sale will have
to be established by production of the original sale deed, or a
certified copy after laying foundation for receipt of secondary
evidence under Clauses (a) or (b) or (c) of Section 65, and then
establishing the execution of the sale deed.
Conclusion
26. At this stage, learned Counsel for the respondent submitted that it
is also the case of the respondent that the petitioners/tenants had
clearly admitted in writing (in the suit filed by them for specific
performance) that a sale deed was executed by Ramdas and others in
favour of the Respondent; and that in view of this admission, the case
would fall under Clause (b) of Section 65 enabling him to let in
secondary evidence. We, however, find that the alleged written
admission (Plaint in the specific performance suit) was not produced
and there is no material to decide whether the matter would fall
under Section 65(b). Further, that is not the ground on which the trial
Court allowed the application of the respondent herein to let in
secondary evidence.
It is open to the respondent to place material to show that the case
would fall under Clause (b) in which even he may still be entitled to
give secondary evidence in regard to sale deed. Alternatively, it is
open to her to take steps to secure the original,
27. We therefore set aside the order dated 22-2-2005 of the trial
Court passed in Civil Suit No. 423-A/2002 (new No. 20-A/2004) and
remit the matter for fresh consideration of the application in
accordance with law.