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Documents - Proof, Admissibility and Exhibition

Criminal cases are decided mainly on the basis of oral testimony of the witnesses who have witnessed the occurrence. The documents in the criminal cases have a very little role to play except in the offences involving economic offences. Whereas in the civil case, the documents are the backbone of the case. Civil cases are decided on the basis of the documents by which the relevant facts are to be proved. A man can be convicted on the basis of the statement made orally by a witness whereas in a civil case hardly a decree can be passed on the basis of the oral statement of the witness. Most of the civil cases affecting the rights of the parties in valuable properties fail on account of lack of proof of documents. Mode of proof of documents is the complicated, cumbersome and intricate task bestowed upon the trial court advocate as well as the trial court judges. A large number of practising advocates fails to prove their case by not properly proving the documents resulting in irreparable loss to the party who is ignorant about the intricacies of law.

Mere exhibition of the document does not dispense with the proof of the document in a legally permissible manner.^[2] The relevant law relating to proof of documents is contained in evidence act 1872. The procedure, method and way of mode of proof of documents is provided in section 64 to 73A of the said act.

By this article, I will deal exclusively with the proof of documents, its admissibility and its exhibition in a legal manner. For knowing the mode of proof of documents, one ought to understand the methodology and relevant legal provisions to prove the document besides one ought to know the meaning of the word document.

DEFINITION OF DOCUMENT:- Document has been defined in section 3 of the interpretation clause of evidence act as under:-

"document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter"

Some illustrations have been appended with this section to explain the phrase `document'.

The said definition has also been adopted in section 3(18) of the General Clauses act, 1897.

Both these acts had been brought on the statue book in the nineteenth century. After the passage of one and a half century, the definition of a document has not undergone any change or modification till date.

In simple layman language, a document can be described as which can be perceived by the eyes. This simple definition covers the entire gamut of the word document in its true sense. Anything which cannot be perceived by eyes can never be considered to be a document. Voice cannot be perceived by eyes and as such is not covered under the definition document. Similarly, anything which can be perceived by touch is not a document.

PROOF OF DOCUMENT

Different modes have been prescribed/demarcated under the evidence act 1872 about the proof of documents. The accepted mode of proof of documents can be summed as under:-

1. By admission of the person who wrote or signed the document

2. By calling a person in whose presence the document was signed or written(ocular evidence/attesting witness)

3. By calling a person who is acquainted with the writing of the person by whom the document is supposed to have been signed or written (Section 70)

4. By proof of an admission made by the person who is stated to have signed or written the document to that effect made in any other judicial proceedings.

5. By calling a handwriting expert who can compare in the Court the disputed signatures of writing with the admitted signatures or writing (opinion evidence/scientific evidence)

6. By calling a person who in routine has been receiving the document signed by the person in the course of his business or official duty though he may have never seen the author signing the document.

All these modes have been explained in the judgment of the Himachal Pradesh High Court.^[3]

MODE OF PROOF

Under section 67 of the act provides proof of signatures and handwriting of the person who is stated to have signed or written document must be proved to have been in his handwriting. Under section 70 of the act which says that a admission of the party to a attested document of its execution by him shall be sufficient proof of his execution as against him though it may be a document required by law to be attested. Otherwise also, under section 18 of the act, admission is the best proof of the execution. Further under section 58 of the act, an admitted fact need not be proved.

As a sequel, the document can be said to be proved if it is admitted to be signed or written by him. No other proof in this regard is required.

DOCUMENTS REQUIRED BY LAW TO BE ATTESTED.

The vital question which arises for consideration is what are the type of documents which are required by law to be attested and the documents which are not required by law to be attested.

Under Indian Legal jurisprudence there are four documents required by law to be compulsorily attested by two or more attesting witnesses. These are as under:-

1. A will is required to be attested by two or more witnesses under section 63 of the succession act.

2. A Mortgage deed is required to be attested by two or more witnesses under section 59 of the transfer of property act, 1882

3. A gift deed is required to be attested by two or more witnesses under section 123 of the transfer of property act, 1882

4. A bond required to be attested by one witness under section 2(5) of the Indian Stamp Act, 1899.

Except the aforesaid four documents, no other document is required by law to be compulsorily attested by any attesting witness. The minimum requirement of the first three set of documents is two but there is no bar on the document being attested by more than two witnesses. Only bond is required to be attested by one witness. If a document under the first three categories is attested by only one witness, it is legally inadmissible in evidence for not complying with the mandatory provisions of law. However, the judicial interpretations has taken its firm root when it has observed that only one witness is required to be examined to prove the execution of the document. There is no necessity of examining both the witnesses though the document is to be attested by two witnesses.

PROOF OF DOCUMENT REQUIRED BY LAW TO BE ATTESTED.

Section 68 of the act provides the mode of proof of execution of documents required by law to be attested. Such document shall not be used in evidence until one attesting evidence atleast has been called for the purpose of proving its execution if there be an attesting witness alive and subject the process of court and capable of giving evidence.

Three ingredients can be culled out for application of this section

1. An attesting witness has to be alive.

2. He is subject to the process of court

3. He is capable of giving evidence.

In case, any of the three ingredient is missing, the document cannot be said to be legally prove.

PROVISO TO SECTION 68

That the proviso lays down that it shall not be necessary to call an attesting witness in proof of the execution of any document not be a Will which is registered in accordance with the provisions of Indian registration act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied.

For the purpose of proving the Will, the examination of the attesting witness is sine qua none for its proof. The examination of the witness cannot be dispensed with under any of the circumstances.

For the remaining two documents i.e. mortgage and gift which are compulsorily registrable document there is no need to cal and examine the witness if its execution is not denied specifically by the executants. The author of such document has to be specifically and unequivocally deny the execution of the document so as to compel the other party to prove the document. The Will comes into operation after death of the executant so he cannot come from heavens to deny specifically the execution of the Will.

PROOF OF DOCUMENTS WHERE NO ATTESTING WITNESS IS FOUND

Section 69 of the Indian Evidence Act provides that if no such attesting witness can be found or if the document purports to have been executed in the united kingdom it must be proved that the attestation of one attesting witness atleast is in his handwriting and the signatures of the person executing the document is in the handwriting of that person.

This section deals with the contingency where both the attesting witnesses are dead, then, their signatures, thumbmark can be proved by calling any person who can prove the said signatures or handwriting. The second requirement of this section is that the signatures/thumb mark of the executants has to be prove to be that of the executant in a legally permissible manner.

PROOF WHEN ATTESTING WITNESS DENIES THE EXECUTION

Section 71 of the Indian Evidence act provides that of attesting witness denies or does not recollect the exhibition of the document, its execution may be proved by other evidence. The phrase `other evidence' has to be interpreted in terms of section 69 of Indian Evidence Act, 1872.

EXPERT OPINION

Section 73 of the Indian Evidence act provides that when the executant denies his signatures, writing or the seal to have been written or made, then, the said disputed signatures, writing or seal may be compared with the one which is to be proved although that signatures, writing or seal has not been produced or proved for any other purpose. The court is competent to direct any person present in the court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by any such person. Though science of handwriting is not an exact science as compared to the science of thumb impression, yet if the report of the handwriting expert is logical, convincing and acceptable, the same can be admitted into evidence. However, the court should not embark upon itself the task of comparison of signatures or handwriting on itself.

PROOF OF DIGITAL SIGNATURES

Section 73A of the Indian Evidence Act provides for the mode of proof of digital signatures of the person by whom it purports to have been affixed by modes provided in this section.

OBJECTION REGARDING ADMISSIBILITY OF DOCUMENT

Prior to the amendment of order 18 Rule 4 CPC, the examination in chief of a witness was recorded in open court in the presence of the adverse party who could raise the objection regarding the exhibition of the document and the court was to decide the said objection there and then. However, after the amendment of the Code of Civil Procedure in 2001, in Order 18 Rule 4 it has been provided that the examination in Chief of the witness has to be by way of affidavit which is written, signed and attested and the documents are exhibited outside the courts. Nothing happens in the presence of the adverse party.

To avoid the introduction of irrelevant documents or documents which are not legally proved, it has been provided in Proviso to Order 18 Rule 4(1) wherein it has been laid down that proof and admissibility of such document which are filed alongwith the affidavit shall be subject to the orders of the Court. In view of this proviso, there is no necessity of raising any objection regarding the admissibility and proof of documents. However, out of abundant caution, the adverse party ought to raise objection regarding the proof and admissibility of any such document.^[4]

When the objection is taken regarding the mode of proof of the document, then, the party tendering the document ought to become vigilant and prove the document in accordance with the procedure detailed supra. Otherwise, the party tendering the document may carry a wrong impression stands proved and at the final hearing he may suffer an adverse order on account of non-proving the said document in accordance with law.^[5]

Other objections regarding exhibition

There are three types of objections which can be taken against the exhibition of the document are enumerated as under:-

a. Mode of proof

b. Document having been scribed on a insufficient stamp paper

c. Non-registration of document

The first objection regarding mode of proof of a document can be waived or abundant by the adverse party by not raising the objection at the time of marking of the document as an exhibit. Such an objections relates to the realm of procedural law which can be waived. In case, any such objection is raised, the party marking the document as exhibit shall be duty bound to prove the document in its evidence in the manner detailed above(Supra) as the evidence of the said party is still continuing. It is fatal in case the party does not prove the document despite raising an objection to that effect.

The second objection regarding the document having been scribed on an insufficiently stamp paper cannot be allowed to be waived as it relates to the exchequer of the state. Moreover, it is a legal and substantive objection which can be taken at a later stage. No question of waiver applies in such cases. The insufficiently stamped document can be impounded under section 35 of the Indian Evidence act by paying the requisite value of the stamp duty with ten times penalty.

The third objection regarding the non-registration of the document can ever be waived by any party being legal objection and can be raised even when the proceedings are pending before the Hon'ble Supreme Court of India. A document which requires compulsory registration cannot be admitted in evidence except for limited collateral purposes under section 49 of the Indian Stamp Act. The main difficulty in deciding such an objection at the time when it is raised crops up only when the document is described by one party to be a memorandum while the adverse party alleges that it is a document on the basis of which rights are created between the parties.

The court should be prompt, quick and intelligent enough to decide the first two objections whenever they are raised while the decision on the third objection can be postponed to the stage of final arguments after both parties lead their respective evidence. Similarly, advocates ought to remain vigilant enough about the rights of their respective clients as its relates to the arena of administration of justice. Such a lapse on their part may result into irreparable loss to his party/client.

[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. He had judged various moot competitions held in PURC, Ludhiana.

[2] LIC of India and another v. Rampal Singh bisen, 2010(2) RCR(C) 459.

[3] 1995(1) RRR 692(Para 7)

[4] Jasjit Singh and Another v. Prem Harjit Singh and other, 2013(1) RCR(C) 514.

[5] Rasik Lal Manikchand v. M/s MSS food products, 2012(2) RCR(C) 307(SC).

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