Law Finder Live

Legal And Functional Perspective Of Primary Evidence

It is a cumbersome task to classify the documents into various categories. The wisdom of the legislature in the year 1872 has to be appreciated in this regard. Not only the classification of documents into different categories have been made but it is equally a tedious task to define differentiate and distinguish each category of document. The classification made by the Legislature is unique and has withstood the testing time of about 150 years.

Documents have been divided into two categories:- (a) Primary Evidence and (b) Secondary Evidence. In this article, my focus is limited to the extent of defining the primary evidence. Under section 64 of the Indian Evidence Act, 1872 (hereinafter called the "Act"), all the documents are to be proved by way of primary evidence except in the cases enumerated under section 65 of the Act. Although the science has not developed in the year 1872 to the extent as it has developed nowadays, yet the legislature had visualized that human mind may devise certain machinery/technique by which he is able to do the mischief to cause a wrongful gain to himself and a wrongful loss to the opponent party.

Definition of Primary Evidence:-

Section 62 of the Act, aptly defines the primary evidence as under:-

62. Primary evidence.-Primary evidence means the document itself produced for the inspection of the Court.

In Black's Law Dictionary, 6th Edition; Primary Evidence has been defined as under:-

Primary Evidence means original or first hand evidence; the best evidence that the nature of case admits of, the evidence which is required in the first instance and which must fail before secondary evidence can be admitted. That evidence which the nature of the case or question suggest as the proper means of ascertaining the truth, it is the particular means of proof which is the most natural and satisfactory of which the case admits, and includes the best evidence, which is available to a party and procure able under the existing situation and all evidence failing short of such standard, and which in its nature suggest there is better evidence of the same fact is secondary evidence.

This definition given in the Black's law dictionary also clarifies that the primary evidence is the original or firsthand primary.

Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

For the purpose of a facilitation to understand the true impact and meaning of this definition, two explanations and one illustration are appended therein. The sole purpose of adding explanation is that the legislature wanted to further fortify the definition with illustration, while illustration is added by way of an example to clarify further the true impact of the definition.

Thus, the primary evidence means the original or firsthand information, which the nature of the case admits. The evidence which is required in the first instance to be produced before the court is the primary evidence. No doubt can be attributed to the original document produced before the court. Otherwise also why a party ought not to produce the primary evidence in the first instance.

Explanation No.1:-

When we go through this explanation, it is divided into two parts. The first part provides that where a document is executed in several parts, each part is primary evidence of the document.

An agreement or a compromise is executed between three or more parties. Number of sets of the agreement or compromise are prepared at one and the same time. Each part is signed by the all parties and witnesses at one and same moment in the present of each other. Such parts becomes the primary evidence.

A will, when required to be registered, is to be prepared in duplicate. The copy of will is typed out at the same time. It is signed by the scribe, testator and the witnesses. The second copy is kept by the Sub Registrar at the time of registration of will in his record. First copy of the will is handed over to the testator. Once the copy of will is signed by scribe, testator or the witnesses, it assumes the character of the original document. However, same is applicable in all type of documents viz. sale deed, mortgage deed, gift deed etc. However, the only lacuna in the said copy retained in the office of Sub Registrar is that it is not written or scribed on the proper stamp paper. Non appending of stamp paper has been held by the courts to be in the formed of the secondary evidence, whereas, under section 74(2) of the Act says that public record kept in any state of private documents is covered under the definition of the Public Documents. In the considered opinion of the author, it is submitted that no discrimination should be shown to the original sale deed, mortgage deed, gift deed and the copy of same retained in the office of Sub Registrar, where the said document is registered.

The second part of explanation-1 is a bit complicated, as it provides that if a document is executed in counter part, each counter part being executed by one or some of the parties only, each counter part is primary evidence as against the parties executing it. Thus, applying the dictum of this second part of the explanation, it becomes crystal clear that the copy retained in the office of Sub Registrar, which is duly signed by the scribe, executant and the witnesses becomes the primary evidence and can never be considered as secondary evidence.

Explanation-2:-

This explanation is based on the scientific technique invented by human brain for preparing a large number of copies. The essentials of this explanation are that where a number of documents are all made by one uniform process, as in the case of printing, lithography, photography, each is primary evidence of the contents of the rest, but where they are copies of common original, they are not primary evidence of the contents of the original.

When we analyze this explanation in its entirety, it is deducible from it is that there are different essential and processes prescribed in it. Such different essential and processes have to be separately dealt with.

The opening lines of the explanation reads as, "where a number of documents are made by one uniform process", it mandates that number of documents are to be prepared. All the documents are to be prepared by one uniform process. If the process of preparation of document is different, then, it will be outside the purview of this explanation. The emphasis of the legislature is of the uniform process. Some further illustrations of uniform process are given in the later part of the explanation.

Printing:- The second part consists of printing. In the year 1872, printing was the main process of preparation of documents. Printing press prepares the copies of documents in the same process and then, these are considered to be primary evidence.

Lithography:- The process of printing from a flat surface treated as to repel the ink except when it is required for printing. You may have seen the printing of fabric by wooden or stone blocks. On the said printed blocks, the human do carry out the designs with the help of needle and thread.

Counter-part:- This word has not been defined anywhere either in the Act or under the General Clauses Act. For understanding the true meaning of the word counter-part we can rely upon Black's law dictionary 6th Edition, wherein the counter-part has been defined as under:-

In convincing, the corresponding part; a duplicate or a copy. Where an instrument of conveyance, as a lease, is executed in parts, i.e., by having several copies or duplicate made and interchangeably executed, that which is executed by the grantor is usually called the original and rest are counter-parts; although, where all the parties execute every part, this renders them all originals.

Illustration

A perusal of the illustration appended to Section 62 of the Act, provides that if a person is shown to be in possession of number placards, all printed at one time from one original. Anyone of the placards is the primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

A close scrutiny and analysis of this illustration shows that original is one. From that original, a number of placards are printed at one time, then each placards is the primary contents of any other, but no one of them is the primary evidence.

Conclusion:-

From the discussion made above, it can be easily assumed and presumed that there is a fine distinction between the primary evidence in the form of original document and a copy of the document retained by Sub Registrar or any other authority prepared in the same process. In case, the copies retained in the office of Sub Registrar are considered to be the primary evidence a lot of time energy and money will be saved in proving the said document as a primary evidence. A certified copy of a public document under section 74 of the Act is per se admissible and requires not proof unless covered under the contours of section 68 of the Act.

[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. The author has written various articles, which have been published in the journals. The author has also addressed various webinars on facebook/youtube on various legal aspects to enlighten the younger generation. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, email: advocateajayjindal@gmail.com, Ch.No.425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

[2*] The co-author started attending the courts since May, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email:-Abhayjindal14@yahoo.co.in, M No. 9814912425

---