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 visiting 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

Introduction:-

Under the Punjab Land Revenue Act, 1887, the hierarchy of officers has been created. No officer can diligently perform his duties unless and until he knows the power vested to him and the procedure which has to be followed by him in discharging the duties assigned to him under the Act. In India, there was various princely estates prior to independence, which were governed by the kings, Nawabs and other rulers. There was no uniformity in the procedure, which was followed by the officers appointed by such States. What to say of uniformity of procedure, there was no written procedure, which a common man could come to know for redressal of his grievances. After the advent of Britishers in India, they started formulating the Acts, rules and regulations besides the procedure to be followed by the officers, so appointed in all the Acts. The purpose of prescription of the procedure was that both the parties may know as to what procedure has to be followed by them in a particular case. In all the areas, which came under the governance of Britishers, the same procedure was made applicable. Uniformity of procedure was adhered to in all the Acts. The principles of natural justice is the foundation of such procedures. Fair opportunity was granted to both the parties to present their case and submit their arguments.

The provisions for procedure has been made in all the enactments which have been passed from time to time till date. Without prescribing the procedure, the act can be compared with a marriage procession party without a bridegroom. Thus, you will find that in each and every enactment, procedures and rules have been made therein. The Punjab Land Revenue Act (herein after referred to as “Act”) is not an exception in this regard.

Persons entitled to appear:-

The persons who are authorized to appear before a revenue officer, has been prescribed under section 18 of the Act. As per the said sections, the following persons can cause their appearance before a revenue officer for applications and acts done before him.

a) By the parties themselves; or

b) By their recognized agents or a legal practitioner.

A proviso has been added in this section, which prescribes that a employment of a recognized agent or legal practitioner shall not excuse the personal attendance of the parties to any proceedings in any case, in which personal attendance is specially required by an order of the officer.

Revenue Officer:-

Revenue officer has been defined in section 3(12) of the Act as under:-

“Revenue officer in any provision of this Act, means a revenue officer, having authority under this Act to discharge the functions of a revenue officer under that provisions.”

Thus, the mere appointment of a revenue officer is not a essential ingredient for a revenue officer to Act. The revenue officer must be having the authority under this Act to discharge the functions of a revenue officer under the particular provisions.

Legal Practitioner:-

The use of word legal practitioner has been made in section 18(b) of the Act. Legal practitioner has been defined in section 3(13) of the Act as under:-

“Legal practitioner means any legal practitioner within the meaning of the legal practitioners act 1879(XVIII) except a Mukhtar.”

After the passing of the Advocates Act, 1961, now the work of legal practitioner has been taken over by the Advocates who obtain a license to practice law under the provisions of Advocates Act. The concept of legal practitioner stands repealed. Nowadays, there is no legal practitioner which will be found working in any court of law.

Thus, the appearance can be made by the parties or the power of attorneys (Recognized agents) or an Advocate before the Revenue officer.

Powers to make rules:-

Without conferring the powers as to make the rules for procedure, no rule can be passed or formulated by any officer. Under section 17 of the Act, the State Govt. has been entrusted with the Powers to make rules, consistent with the Act for regulating the procedure of revenue officer under this Act in cases, in which a procedure is not prescribed by this Act. Thus, State Govt. is the only competent authority to make rules. However, the said rules of procedure have to be consistent with the Act for regulating the procedure of the revenue officer.

Nature of the Rules:-

Under section 17(2) of the Act, the nature of the rules have been prescribed by the legislature, which covers the following aspects:-

(a) For the mode of enforcing orders of ejectment from and delivery of possession of criminal property and rules providing for those matters;

(b) All are any of the powers in regard to contempts, resistance and the like, which a civil court may exercise in execution of a decree, whereby it has adjudged ejectment from or delivery of possession of such property.

(c) Under section17(3) of the Act, a revenue officer may refer any case, which he is empower to dispose of under this Act to another revenue officer for investigation and report and may decide the case upon the report subject to the rules made under this section.

Thus, powers have been given to the revenue officer to entrust the case to any other revenue officer or to make an investigation at the spot and report the matter to the revenue officer, by whom the case has been sent.

Powers of revenue officers to summon persons:-

It is, within the powers of revenue officer to summon any person whose attendance he considers necessary for the purpose of any business before him as a revenue officer (Section 19(1)). Thus, the power of summoning any person vest with the revenue officer only when he considers necessary for the purpose of any business before him, whose attendance he considers necessary. Thus, reasons have to be assigned by the revenue officer, as to why he is summoning a particular person for attending the proceedings.

Rights of the persons so summoned:-

According to section 19(2), a person so summoned shall be bound to appear at the time and place mentioned in the summons in person or, if the summons so allows by his recognize agent or legal practitioner. The right has been given to the person who has been summoned for appearance before a revenue officer that he can appear either himself or through his recognized agent or legal practitioner by virtue of section 18 of the Act.

Statement of the person so summoned

When the person who has been summoned to attend the proceedings before the revenue officer shall be bound to state the truth upon any matter respecting which he has been examined or make statements and to produce such documents and other things relating to any such matter as the revenue officer to record the statement of the person on oath. In case, the person so summoned to make a statement does not speak truth, then appropriate proceedings can be initiated against him for making a false statement before the said revenue officer. Otherwise also it is the bounden duty of all persons who appear in legal proceedings to speak the truth and truth only, though, the people don’t speak truth when the come to the court.

Mode of service of summons:-

Section 20 of the Act prescribes various mode of service of summons. The mode prescribed under this section is akin to the procedure prescribed under order 5 of the Code of Civil Procedure. It may not be an exaggeration if we say that the powers of the revenue officer to serve the summons on the persons have the basis in the Code of Civil Procedure.

(a) Summons can be served personally on the person to whom it is addressed or his recognized agent or an adult male member of his family usually residing with him (Section 20(1)) of the Act.

(b) If the service cannot be made or if the acceptance of the summons is refused, the summons may be served by posting a copy thereof as the usual or last known place of residence of the person to whom it is addressed or if that person does not reside in the district in which the revenue officer employed and in case to which the summons relates has reference to the land in that district, then, by posting a copy of the summons on some conspicuous place or near the estate, where the land is situate (20(2) of the Act.

(c) In case the summons relate to a case, where the person having the same interest are so numerous that person service of all of them is not reasonable practicable, it may, if the revenue officer so directs, be served by delivery of a copy to such of those person, as the revenue officer nominate in this behalf and by proclamation of the contents thereof for the information of other person interested (20(3) of the Act. Such persons receive the summons in a representative capacity and are bound to inform the concerned persons.

(d) The summons may be served on the direction of the revenue officer, on the person named therein either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a letter addressed to the person and registered under part(3) of the Indian Post Office Act, 1866. Thus, summons can be sent to a person through registered post (section 24) of the Act.

(e) When the summon is so forwarded in a letter and it is proved that letter was properly addressed and duly posted and registered, the revenue officer may presume that the summons was served at the time when the letter would delivered in the ordinary course of post. Thus, powers have been vested on the revenue officer to raise a presumption regarding the due service of summons on the persons concerned in case the above said conditions are fulfilled. Section 114 of the Indian Evidence Act also raises a presumption in case an official act is done in the usual course of business by the concerned officer.

Supplemental Powers of the Revenue Officer:-

Section 21 of the Act, it has been provided that the notice, order of proclamation or copy of any such document issued by revenue officer for service on any person, shall be delivered in the manner provided in section 20 of the Act for the service of his summons. In this section, it has been made mandatory on the revenue officer to get the service affected strictly in the manner provided section 20 of the Act. In case there is any deviation or violation of the procedure prescribed under section 20 of the Act, the said service of the summons is vitiated and can be set-aside by a higher authority on the ground of non-following of the mandatory procedure and showing the prejudice caused to him by such non-service of summons.

Mode of Proclamation:-

In section 20(3) of the Act, it has been laid down by the legislature that summons may be sent by proclamation of the contents thereof for the information of the other persons interested. The said section does not prescribed the mode of proclamation. Section 22 of the Act prescribed that mode in which it says that it shall in addition to any other mode of publication which may be prescribed in any provision of this Act, be made by beat of drum or other customary method and by posting a copy thereof on a conspicuous place in or near the land in which it relates. Thus, publication in any newspaper, munadi by beat of drum or by pasting the copy of summons in or near the land to which the proceedings relate may be resorted to by the revenue officer.

The Punjab Land Revenue Rules:-

Under the Act powers have been bestowed upon the State Govt. to make rules for regulating the procedure to be followed by the revenue officer. Rule 34 to 43 of the said rules provide for the procedure, which ought to be followed by the revenue officer.

a) Rule 34, the statement and pleadings made by the parties or by on behalf of parties to a revenue to a revenue proceedings, whether oral or written, shall be as brief, as the nature of the case admits. It shall not be argumentative. It should be simple and concise, narrative of the facts, which the parties believes to be material to the case and which he either admits or believes that he will be able to proof.

b) Every written application or statement filed by a party to a revenue proceedings shall be drawn up and verified in the manner provided by Civil Procedure Code of written statement in suits. Thus, the procedure prescribed under the civil procedure code is the mother and source of all the rules, in any act, wherein any such requirement is there.

c) Rule 35 states that in case the death of one of the parties who is a female, shall not cause the proceedings to await. Legal representatives of the said deceased persons can be impleaded as parties.

d) According to rule 36, the revenue has the powers to follow procedure of a revenue court in fixing the date of parties and their witness in adjourning the proceedings and in dismissing the application on default or for the sufficient reasons.

e) According to rule 37, the revenue officer is competent to appoint a commission in respect to the proceedings before a revenue officer as per the provisions of section 75 and 78 of the code of Civil Procedure, 1908.

f) According to the rule 38, the revenue officer has the power to award the expenses to a witness, who is summoned to appear before him for a sum not exceeding the sum to which the witness would have been entitled for a like attendance in a civil court and sum so awarded shall be the cost in the proceedings.

g) According to the rule 39, the revenue officer is not required to write a detailed record of the statement of the parties and witnesses, but the order of revenue officer shall state briefly the person examined by him, the facts to which they deposed and the grounds of the order.

h) Under rule 41 and 42, the provisions regarding the contents of the order and apportionment and recovery of costs have been made.

i) Under rule 43, powers have been given for executing or orders of ejectment etc. which are akin to the provisions prescribed in the code of Civil procedure, 1908 for the time being in force in respect of execution of a decree.

j) Under rule 40, in other proceedings under the land revenue act, not being proceedings under 117 and in proceedings before the revenue officer under the Punjab Tenancy Act, the revenue officer shall make with his own hands a brief memorandum of the statement of the parties at the time when such each statement is made.

Conclusion:-

From the above said discussion of the said sections and rules, framed prescribing the procedure of revenue officer, it cannot be said that the proceedings before revenue officer are summary in nature, but they are just like the proceedings under taken in civil court. The proceedings conducted before a revenue officer according to the powers conferred on him are exhaustive and exclusive in nature, in which the jurisdiction of the civil court is barred under section 158 of the Act. The exclusion of jurisdiction of civil courts in the matters within the exclusive jurisdiction of the revenue officer have been detailed. Thus, it is not appropriate to dub the proceedings before revenue officer as a summary procedure or merely undertaken for fiscal purpose. These are substantive in nature and have to be interpreted as per the discussion made above.

[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

Introduction:-

The governess of every department cannot be managed unless various officers are appointed to carry out the aims and objects enacted in a particular Act. Mere introduction of an Act on statute book is not enough, in the absence of the appointment of the officers, to implement the provisions thereof. A total chaos will be prevalent in case, hierarchy of officers is not provided in the Act.

In Punjab Land Revenue Act, 1887, a hierarchy of officers is provided for implementation of the law enacted by legislature. Punjab being a primarily an agriculture state, where most of the economy is based upon the agriculture, a provisions had to be made in the act for proper and true implementation of the provisions of the Act.

Hierarchy of Revenue officers:-

U/s 6 of the Punjab Land Revenue Act, 1887, a number of officers are appointed for carrying out the aims and objects of the act. The said section provides following classes of revenue officers namely:

(a) The Financial Commissioner.

(b) The Commissioner

(c) The Collector

(d) The Assistant Collector of First Grade

(e) The Assistant Collector of the Second Grade.

The power to appoint officers is vested with the State Govt. vide which, it can appoint any assistant commissioner, extra assistant Commissioner or Tehsildar to be an Assistant Collector of the First or of the Second Grade, as it thinks fit and any Naib Tehsildar, to be an Assistant Collector of the Second Grade. A notification has to be made by the Govt. for appointing the aforesaid officers specially by name or by virtue of the office or of more persons than one by description sufficient for their identification.(Section 6(3)&(4) of the Act)

(a) FINANCIAL COMMISSIONER:- Financial Commissioner is the head of the revenue department. He is a person, who is of the secretary level. He discharges the function entrusted to him under the Act. U/s 7 of the aforesaid act, there can be one or more Financial Commissioner, which may be appointed by the State Govt. In case, more than one Financial Commissioner have been appointed, the State Govt. may make rules as to the distribution among them of business under this or any other act by those rules.

ADMINISTRATIVE CONTROL/POWERS OF THE FINANCIAL COMMISSIONER:-

U/s 11(1) & (2) of the aforesaid Act, the Financial Commissioner has to work under the State Govt. The General Superintendence and Control over all other revenue officials, shall be vested in, and all such officers shall be subordinate to the Financial Commissioner. Financial Commissioner shall control all revenue officers in his division. Thus, it can be safely said that financial commissioner is the head of the revenue department who work under the superintendence and guidance of the State Govt.

POWERS OF THE FINANCIAL COMMISSIONER:-

(i) U/s 12 of the aforesaid act, the Financial Commissioner may by written order or distribute in such manner as it thinks fit, any business cognizable by any revenue officer under his control. The Financial Commissioner may withdraw any case pending before any Revenue officer under his control and either dispose of it there himself or by written order, referred to it for disposal to any other revenue officer under his control.

(ii) The power of withdrawal or transfer does not empower him to exercise any powers or deal with any business, which he would not be competent to exercise or deal with within the local limits of his own jurisdiction.

(iii) Powers of appeal, review and revision:-

The appeal shall lie from an original or appellate order made by a Commissioner. However, when the original order is confirmed on the first appeal, a further shall not lie.

(iv) Limitation for filing an appeal:-

The limitation for filing an appeal under section 13 of the Punjab Land Revenue Act, shall run from the date of the order appeal against. The time limit providing for filing the appeal is before the Financial Commissioner is 90 days.

(v) General Powers of Superintendence/Revisional Power:-

U/s 16 of the Land Act, the Financial Commissioner may at any time, call for the record of any case, pending before, or disposed of by, any revenue officer, subordinate to him.

(b) THE COMMISSIONER:-

There are various divisions carved out in the State of Punjab. Each division is comprised of various districts. Every division has its own Commissioner, who exercise his control over the collector or any other officer, appointed or working in the division subordinate to him.

U/s 11 (3) of the aforesaid Act, the Commissioner has to work under the General Superintendence and control of the Financial Commissioner. The General Superintendence and Control over all other revenue officials working in his division, shall vest in, and all such officers shall be subordinate to the Commissioner. Commissioner shall control all revenue officers in his division. Thus, it can be safely said that Commissioner is the head of the revenue department of the division under his control, which work under the superintendence and guidance of the Financial Commissioner.

POWERS OF THE COMMISSIONER:-

(i) U/s 12 of the aforesaid act, the Commissioner may by written order or distribute in such manner as it thinks fit, any business cognizable by any revenue officer under his control in the division. The Commissioner may withdraw any case pending before any Revenue officer under his control and either dispose of it there himself or by written order, referred to it for disposal to any other revenue officer under his control in the division.

(ii) The power of withdrawal or transfer does not empower him to exercise any powers or deal with any business, which he would not be competent to exercise or deal with within the local limits of his own jurisdiction.

(iii) POWERS OF APPEAL, REVIEW AND REVISION:-

The appeal shall lie from an original or appellate order made by a Collector or other revenue officer before the Divisional Commissioner. However, when the original order is confirmed on the first appeal, a further shall not lie. When any such order is modified or reversed on appeal by the Collector, the order may be made by the commissioner on further appeal, if any, to him shall be final.

(iv) LIMITATION FOR FILING AN APPEAL:-

The limitation for filing an appeal under section 14 of the Punjab Land Revenue Act, shall run from the original, or appellate order of a revenue officer shall be 60 days.

(v) POWER TO CALL FOR, EXAMINE & REVISE PROCEEDINGS OF REVENUE OFFICERS/REVISIONAL JURISDICTION:-

U/s 16 of the Land Revenue Act, the Commissioner may at any time, call for the record of any case, pending before, or disposed of by, any revenue officer, under his control.

(c) COLLECTOR:-

U/s 11(4) of the aforesaid Act, the Collector has to work under the supervision of Commissioner/Financial Commissioner/State Govt. The General Superintendence and Control over all other revenue officials posted in the district, shall be vested in, and all such officers shall be subordinate to the Collector and he shall control all revenue officers in his division. Thus, it can be safely said that Collector is the head of a particular District, who work under the superintendence and guidance of the Commissioner.

Powers of the Collector–

(i) U/s 12 of the aforesaid act, the Collector may by written order or distribute in such manner as it thinks fit, any business cognizable by any revenue officer under his control. The Collector may withdraw any case pending before any Revenue officer under his control and either dispose of it there himself or by written order, referred to it for disposal to any other revenue officer under his control.

(ii) The power of withdrawal or transfer does not empower him to exercise any powers or deal with any business, which he would not be competent to exercise or deal with within the local limits of his own jurisdiction.

(iii) Powers of appeal, review and revision:-

The appeal shall lie to the Collector, when the order is made by an Assistant Collector of an either grade.

(iv) Limitation for filing an appeal:-

The limitation for filing an appeal under section 13 of the Punjab Land Revenue Act, shall run from the date of the order appealed against. The time limit provided for filing the appeal before the Commissioner is 30 days.

(v) General Powers of Superintendence/Revisional Power:-

U/s 16 (3) of the Land Revenue Act, the Collector may at any time, call for the record of any case, pending before, or disposed of by, any revenue officer, subordinate to him.

REVIEW BY REVENUE OFFICERS:-

Powers to review the orders made by the revenue officers has been conferred u/s 15 of the aforesaid Act. A revenue officer may either of his motion or on the application of any party interested, review and on so reviewing, modify, reverse or confirm any order passed by himself or any of his predecessor in office.

Provisos to this section:-

There are various provisos added in section 15 of the Punjab Land Revenue Act, before exercising the powers of review by various revenue officers.

(i) Where a Commissioner or Collector thinks its necessary to review any order, which he has not himself passed, and when a revenue officer of a class below of that of collector purposes to review any order, whether passed by himself or by any of predecessor of his office, he shall first obtain sanction of the revenue officer, to whose control, he is immediately subject.

(ii) Thus, according to this section, the commissioner or the Collector, can review the order which have been passed by them. However, if any officer below the rank of Collector i.e. Assistant Collector First Grade or Second Grade proposes to review any order, then he is to first obtain the sanction of the Collector for doing so.

(iii) The third requirement is that the order may be passed by the Assistant Collector First Grade or Second Grade himself or by any of his predecessor in office.

(iv) The application for review of the order shall not be entertained unless it is made within 90 days from the passing of the order or unless the applicant satisfies the revenue officer that he has sufficient cause for not making the application within that period. Thus, power to condone delay on the lines of section 5 of the limitation act, has been conferred on the revenue officer.

(v) No order shall be modified or reversed, unless reasonable notice has been given to the parties effected thereby to appear and to be heard in support of that order. This section is based on the principle that no person should be condemned unheard and on the administrative dictum of the natural justice audi alterum partum.

(vi) The last condition is to the effect that an order against which, an appeal has been preferred shall not be review.

Thus, the powers of the appellate court, are preserved to pronounce on the legality and validity of the order under appeal, where no review is maintainable.

No appeal:-

U/s 15(3), no appeal shall lie from an order refusing to review or confirming on review a previous order. However, the revisional jurisdiction under section 16 can be revoked by the Competent officer in this regard.

Powers to make rules as to procedure:-

U/s 17 of the act, the State Govt. has been conferred with the powers to make rules consistent with the act for regulating the procedure of revenue officer under this act in cases, in which the procedure is not prescribed by the Act.

Assistant Collector of either grade:-

The powers of Assistant Collector of First Grade are normally vested in the Sub Divisional Magistrate of the District, while the powers of Assistant Collector Second Grade are vested in Tehsildar, appointed in a particular Tehsil. Various acts have duly performed by the Assistant Collector of either grade which are entrusted to them and are conferred to them under the Act. U/s 10 of the aforesaid act, it has been provided that except where the class of revenue officers by whom any function is to be discharged is specified in this act, the State Govt. may by notification, determine the functions to be discharged under this act by any class of revenue officers. Thus, the duties or functions to be performed by the Assistant Collector has to be specified by the State Govt. by way of notification made for this purpose.

Other Revenue officers:-

There are other revenue officers employed in the district viz. Kanugo and village officers under section 28 of the Punjab Land Revenue Act, whose detailed powers and duties are provided and enumerated in the Punjab Land Record Manual.

[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

Introduction :-

State of Punjab is primarily based on Agriculture and its produce. There are few heavy industries installed and operative in the state of Punjab. In view of the fact that the state of Punjab is based on Agriculture, the knowledge of revenue laws is one of the essential requirement of a practicing advocate. It is not necessary that if one is dealing in civil law or criminal law exclusively. A Civil lawyer is supposed to have thorough knowledge of the revenue laws and revenue terminology. Every advocate is confronted with revenue record in his day to day practice. In the absence of knowledge of revenue laws/terminology, it becomes difficult to represent a client in an effective manner.

Jamabandi is a basic document which is a foundation of revenue laws. Most of the advocates have either not studied the revenue laws or do not know the exact meaning of the 12 coloumns in the Jamabandi. Copies of Jamabandis are produced by the sureties of the accused persons at the time of furnishing of the bail bond to show the ownership of the surety. In the absence of thorough of the jamabandi, it become embarrsing for an advocate to support its contention.

Preparation of Revenue record is sine qua non for the identification of ownership, change of ownership, law and value of mutation and other aspects of immovable property in a revenue system. Earlier, the main source of income of every Govt. was receipt of land revenue. In olden days when small kingdoms were ruled by various kings/Nawabs, the land revenue was realized either in the form of cash or by a fixed share in the produce of land. Agriculturist, who committed default in payment of land revenue, were meted out various type of punishments. Payment of land revenue and ownership of land are two facets of the same coin.

With the advent of East India Company in India, slowly and slowly, they had taken over the administration of various states by means, fair or foul. Till that time, there was no uniform system for identification of a location or ownership of the property applicable to all the states. Various acts were promulgated to govern the ownership, identification and payment of land revenue. Land revenue in its popular terminology was called “Lagaan”. The Indian movie `Lagaan’, clearly depicts that as to how it was difficult for the farmers to pay lagaan and what type of punishments were bestowed on them, in case, they committed default in payment of the same.

Legislation:

The transfer of property act was brought on the statute book for the first time in the year 1882 while the Punjab Land Revenue Act, 1887 was brought on the statue book for the first time, which codified the law relating to agricultural land by making amendments and improvements in the existing rules, which was earlier implemented as per the whims and fancies of the local rulers. The Punjab Land Records Manual was also added to the statue book which contained the detailed procedure and other allied subjects concerning the agriculture land. Hierarchy of officers from Patwari till Financial Commissioner was constituted in the Punjab Land Revenue Act besides laying down the duties, which have to performed by them and how and in what manner, the records of agriculture land was to be maintained. The Punjab Land Revenue Act, 1872 and the land record started governing the entire procedure of land revenue and the agricultural land. In this article, the author proposes to deal with very limited scope of the effect of Jamabandi, which is defined in the act as “Records of Right”. The records of right are updated every four years. All the changes, which has come into existence during the period of four years are incorporated in the fresh record of rights. Besides, the record of rights, annual records are being maintained, which show the quantity of the crop produced, nature of the crop and the name of the cultivator of the land, which are helpful in assessing the total produce grown in the State. These changes also include the change of ownership, the rate of land revenue payable, the name of the cultivator of land (If he was not the owner) encumbrances created by the owner on the land and its discharge, partition of land, law of aluvian and diluvian etc.).

Definitions of Jamabandi and records of right:-

Section 31 of the Punjab Land Revenue Act, 1887 defines record of rights and documents included therein.

31. Record-of-rights and documents included therein: –

(1) Save as otherwise provided by this Chapter, there shall be record-of-rights for each estate.

(2) The record-of-rights for an estate shall include the following documents, namely: –

(a) statements showing, so far as may be practicable :-

(i) the persons who are land-owners, tenants or assignees of land-revenue in the estate or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein;

(ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto;

(iii) the rent, land-revenue, rates, cesses or other payments due from and to each of those persons and to the Government;

(b) a statement of customs respecting rights and liabilities in the estate;

(c) a map of the estate; and

(d) such other documents as the Financial Commissioner may, with the pervious sanction of the 1[State Government] prescribe.

Similarly, section 33 of the Punjab Land Revenue Act defines the annual record:-

33. Annual record :-

(1) The Collector shall cause to be prepared by the patwari of each estate yearly, or at such other intervals as the Financial Commissioner may prescribe, an edition of the record-of-rights amended in accordance with the provisions of this Chapter.

(2) This edition of the record-of-rights shall be called the annual record for the estate, and shall comprise the statements mentioned in sub-section (2), clause (a), of section 31 and such other documents, if any, as the Financial Commissioner may, with the previous sanction of the [State Government] prescribe.

(3) For the purposes of the preparation of the annual record, the Collector shall cause to be kept up by the patwari of each estate a register of mutations and such other registers as the Financial Commissioner May Prescribe.

The records of rights as prepared under section 31 of the Act is popularly known and in vernacular is called “Jamabandi”. There are twelve columns in the Jamabandi. Special instructions relating to Jamabandi are contained in rule no. 7.41 of the Punjab land record manual read in conjunction with rule 72 of the Punjab Land revenue rules.

Column No. 1 represents Khewat number, which depicts the number of the owner’s holding;

Column No. 2 is Khatauni number is the number of holdings (Khata) of the person responsible for the cultivation. In this column, firstly if the holdings is cultivated by the owner himself (KHUD KASHT) is entered. Next entries of tenant of will is record. When there are several tenancy holders under one proprietor, the tenants in their several classes should be entered as far as possible in alphabetical order.

Column No. 3 contains the Pattis or Tarafs in the order in which they appear in shajra nasab. If there is any common land belonging to all the owners of the Patti or Taraf, enter it a separate khewat number after the khewat number of individual owners.

Column No. 4 describes the name, father’s name, grandfather’s name and address of the owner and other particulars.

Column No. 5 includes the name of the cultivator, father’s name and other particulars, as to whether the owner, the tenant or any other person is cultivating the land.

Column No. 6 depicts the nature of source of irrigation of the agricultural land. In the earlier days, the land was irrigated from the well. However, nowadays, the traditional wells have been replaced by tubewell. If the land is not cultivated, then entry to that effect is entered.

Column No. 7 the field of khasra number is the number given to the field in village map (Shajra kishtwar). The order of entry should usually be that of khasra number.

Column No. 8, the area and classification of land is given in this column. Land was divided in the various classifications in earlier days.

Column No. 9 contains the entry regarding the rent, whether it is a shared of produce (batai) or the lump sum note of the amount.

Column No. 10 depicts the share or measure the right and rule of the bachh.

Column No.11 the land revenue payable is entered, if the land revenue is exempted from payment of it.

Column No. 12, in this column, the name of the owners, mortgagees with possession and alteration in shares by sale purchase, partition which are supported by any mutation or faradbadar entry are entered.

Thus, the details of the jamabandi are entered in this peculiar way.

Presumption of truth:-

Presumption of truth is attached to the entries in the record of rights under section 44 of the Punjab Land Revenue Act in accordance with the law for the time being in force. Similarly, the presumption is also attached to the annual records prepared in accordance with the provisions of the aforesaid act. Otherwise also besides this statutory presumption conferred on the entries in the record of rights or annual records is also supported by section 114 of the Evidence Act, wherein it has been stated that an act done by a public officer in discharge of his public duties, shall be presumed to be has been done in due course of business, unless it is proved otherwise. This statutory presumption and protection attached to the record of rights and annual records confers a great edge on the said record.

Jamabandies and Municipal Record:-

Presumption of truth is attached to jamabandies u/s 44 of the Act, which is a statutory presumption awarded on it by the legislature. There is no such presumption conferred on the municipal record under the Punjab Municipal Act or Punjab Municipal Corporation Act. No parallel can be drawn between the two. Both operate in different fields. The statutory presumption attached to the revenue record cannot be diluted by their intersee comparison. Both operate in their respective field.

In these days of urbanization where the agricultural land or the entire village is declared to be urban area of the municipal committee or corporation, the revenue record is still prepared. However, in some of the judicial pronouncements, it has been held that the entries in the Jamabandi lose their significance when the area is declared to be urban area. It is humbly submitted that such a interpretation is not correct as the Municipal record or the area contained in the municipal committee are not meticulously prepared and maintained as are being maintained and prepared by the revenue authorities. Most of the time, no plan of the exact area of particular holding can be ascertained from the municipal record.

Judicial Interpretation:-

It has been held in various judgments of Supreme Court and High Court that Jamabandi is not a document of title^[2*]. The head notes prepared by the publishers in this regard are misleading which leads an impression that Jamabandi is not a document of title. One must remember that there cannot be an absolute proposition of law. Every preposition of law carries with it various exceptions. On the peculiar facts and circumstances of the case, such observations have been made. A cogent and convincing evidence is required to be led by the person who challenges the presumption attached to the record of right or annual record. Under section 110 of the Evidence Act, which is reproduced as under:-

^{[2* 1994(1) CCC 212 : AIR 1994 SC 227 : 1995(2) RCR(C) 444]}

“110. Burden of proof as to ownership–When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.“

A person who is in possession of a particular property, when challenged regarding his ownership, then it is the person, who challenges such ownership is required to prove the same. In legal jurisprudence it is called “Possession is nine points in law”. If a person is claiming ownership on the basis of a registered document, then, he has to produce the said document to prove its ownership.

Applicability of Provisions of Transfer of Property Act in Punjab:-

The provisions of Transfer of Property Act 1882 are not applicable in the State of Punjab in its entirety. Certain sections have been made applicable to the State of Punjab under various notifications. All the provisions of Transfer of Property Act are not applicable in the State of Punjab.

a) Sale Deed: The provisions of section 54 of the Transfer of Property Act was extended to the State of Punjab w.e.f. 01.04.1955. Prior thereto the sale deed not required to be registered. Oral sale was permissible, which require evidence in the form of mutation duly sanctioned by the Assistant Collector.

b) Mortgage: The provision of mortgage contained in section 69 of the transfer of property act was made applicable in the State of Punjab w.e.f. 10.06.1968. Whereas, it was extended to Chandigarh w.e.f. 31.03.1975.

c) Lease Deed: The provisions of Section 107 of the Transfer of Property Act was extended to the State of Punjab w.e.f. 01.04.1955.

d) Gift Deed: The provisions of Gift Deed as contained in section 123 of Transfer of property act have been made applicable in the State of Punjab w.e.f. 01.04.1955 and in the erstwhile State of PEPSE. It was made applicable w.e.f. 15.05.1957.

e) Exchange Deed: The provisions of Exchange Deed have been made applicable to the Municipal Areas of the State of Punjab vide notification no. 11/2/2000-ST-1/2212.

Prior to the applicability of the above said provisions, all these transaction were contained in the mutation order prepared on the statement made by both the parties admitting the transaction. Sometimes, it was signed by the parties. Thereafter, the assistant collector use to sanction or certify the mutation. No deed much less a registered deed was required to be written between them incorporating the said terms and conditions.

Importance of Mutation;

The agriculturist in Punjab still feel satisfied when mutation is sanctioned in their favour in the revenue record. This psyche has developed into their minds with the passage of several decades, when mutation was considered to be the sole source of title. They have not reconciled themselves with the fact that mutation does not confer any title. They still consider that once mutation has been sanctioned in their favour i.e. the end of the matter. Most of the time, the agriculturist do not preserve the document of title viz. sale deed, mortgage deed, gift deed, lease deed or other deed in their possession. They often lose the same with the passage of time. In case of any dispute, they have to rely upon the mutation entered in their favour and have to lead secondary evidence of the registered document, on the basis of which they have derived title.

Measurement of the land

The agricultural land is recorded in the Jamabandi in two forms in various districts. Under one set of districts, the land is recorded in Bigha-Biswa-Biswasi. A Bigha contains 20 Biswas and the total area of a Bigha is 3000 Sq Yds. Again, a Biswa contains 20 Biswasis i.e. each Biswa measures 150 Sq Yds. Lastly, a Biswasi thus measures 7.5 Sq Yds.

In some of the districts, the land is entered in the form of Kanal and Marlas. 8 kanals are equal to 1 acre/killa of land. 8 Kanals of land measures 4840 Sq Yds. 1 Kanal consists of 20 Marlas. Thus, 1 Kanal measures 605 Sq yds while a Marla contains 30.25 Sq yds.

In Punjab, the land is also recorded in the form of rectangles and killa numbers. A rectangle has 25 killas in it while killa no. 26 is always designated as Ahata Chah from where the entire rectangle was being irrigated. Different rectangle numbers are given to the land consisting in the Village.

Aksh Shajra/Ladha is prepared by the patwari or the revenue officials at the time of consolidation in which the land of entire village is hsown by way of the measurement of a particular Khasra number/Bigha/Killa Number. The Aksh Shajra is helpful in determining the location of the land in the village.

Challenge to the jamabandi in a court of law:-

U/s 45 of the Punjab Land Revenue Act, if any person feels aggrieved by the entries in any record of rights/jamabandi, then he has to file a suit in a civil court challenging the veracity of the entries and taking his claim on the basis of his own title. Existence of section 45 in the Punjab Land Revenue Act also fortify the version that the entries made in the record of right are supreme and the will continue to hold the field despite the fact that as to whether they are made on the basis of a registered document or otherwise.

Judgement of the Supreme Court.

In AIR 1954 SC 379 (Full Bench), it has been held that if the property has been inherited by an agriculturist from his ancestors after their death from time immemorial, it will be very difficult for them to prove their acquisition of title by registered document. In such cases, the copy of jamabandi is the sole document of title. Otherwise also at the time of registration of a title deed, the Sub Registrar refuses to register a document, unless it is coupled with a latest copy of Jamabandi (in case the land is bearing revenue numbers and also the copy of TS-1, in case the property is situated within the municipal area). Thus, in these circumstances, no absolute preposition can be said to exist that Jamabandi is not a document of title. It is not a document of title, in case the person claiming himself to be the owner deriving his title to the property on the basis of a registered document.

Suppose a person challenges, the title of another person which is evidenced by the entries in the record of rights(Jamabandi), then, he has to prove the basis of his challenge. Mere denial of the title should be rejected outrightly. This becomes cumbersome when the court takes the casual challenge of title to be a serious one without deeply identifying and verifying the basis of the said challenge. Mere denial of the title which is not supported by any cogent and convincing evidence should be rejected outrightly to save the precious time of the court to record the evidence and decide the lis. The court should not become oblivious of the fact that section 44 and 45 of the Punjab Land revenue act, 1882 are also on the statute book. Can a statutory presumption will stand rebutted by a mere denial without any cogent and convincing basis as section 44 of the aforesaid act specifically provides that unless contrary is proved.

All these sections of the Punjab Land revenue act is to be taken into consideration in conjunction with the other provisions of the acts for coming to a conclusion regarding the value of the entries in the Jamabandi.

Thus, it can be safely concluded that Jamabandi is a document of title in case of land covered by Revenue numbers when the person is not claiming title on the basis of registered deed. It is an evidence of title. Thus, the preposition that the Jamabandi is not a document of title and is prepared for fiscal purposes is not an absolute preposition but fortified by certain exceptions.

[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. Contact No. 9814712425, Email Id : advocateajayjindal@gmail.com, Ch. No. 425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

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

Every Case, whether civil or criminal, depends upon the evidence lead in the case. It is the quality of evidence that decides the fate of the case. The Quantity of evidence is immaterial to decide the fate of the case. The study of Indian Evidence Act,1872 is most essential for a practicing advocate in the civil courts. Unless and until an advocate is not conversant and does not possess the knowledge of the act, he is in a disadvantageous position. It is settled principle of law that no section in any act can be read in isolation. Harmonious interpretation of all the sections will help an advocate/court to arrive at a correct conclusion. Reading of any section in isolation will lead one to a misinterpretation of the provisions of law besides leading him in arguing or advocating incorrect interpretation of the provision which may lead to a poor judgment. It is well known that the quality of judgment is directly connected to the quality of arguments raised before the Court.

EVIDENCE

Evidence can be characterized as oral/documentary evidence. The relevance proof, exhibition and admissibility of evidence has been copiously dealt with and provided in the Indian Evidence Act (herein after called the Act.). The detailed discussion on this subject is contained in my Article Document: Proof, Exhibition and Admissibility published in 2019(3) RCR(Journal Section) Page 43. The same may be referred to in this context.

The powers of the court have also been defined in the Act. Section-61 of the Act provides as under:-

“Proof of contents of documents.-The contents of documents may be proved either by primary or by secondary evidence.”

A close scrutiny of this section reveals that how and in what manner the contents of the documents have to be proved. Though two modes have been suggested in this section. The use of word “MAY” in this section leaves it to the discretion of the person proving the contents of the document. Primary and Secondary Evidence has been defeinded in Section 62 and 63 of the Act.

Section 64 of the Act which reads as follows:-

“Proof of documents by primary evidence.-Documents must be proved by primary evidence except in the cases hereinafter mentioned.”

A conjoint reading of both the above sections leads to only conclusion that documents have to be proved by primary evidence. The use of word”MUST” in this section makes it mandatory besides being a condition precedent that the documents have to be proved by means of primary evidence. Once section 64 of the Act mandates that documents are to be proved by primary evidence, then , section 136 of the Act comes in to play which reads as follows;-

“Judge to decide as to admissibility of evidence.-When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

A critical analysis of this section shows that Judge may ask the party proposing to lead evidence as to how the said evidence if proved will be relevant while the second part of this section lays down that the Judge shall admit the evidence, if he thinks fit. It is the sole prerogative of the Judge to admit the evidence on fulfillment of essentials laid down in section 136 of the Act. A duty is cast upon the litigant leading his evidence to prove the documents by way of primary evidence only.

In view of the above discussion it is clear that the Judge has to decide about the admissibility of the Evidence. How a party, without the permission of the Court, Suo moto and at his own whims and fancies, can lead secondary evidence of the document. Every word used in all the sections (Supra) have their own importance and meaning.

Even Section 65 of the Act says:-

“Secondary Evidence may be given………………………………………..”

Also shows that after satisfying the conditions laid down in various subsections of Section 65 of the Act, such and evidence may be lead by either party.

IMPORTANCE OF PRIMARY EVIDENCE

The legislature in his wisdom laid down that the contents of the documents have to be proved by primary evidence. Secondary evidence is just like twins, who are born within a short span of time but have their own characteristics habits and fate. Though they look alike but the behavior habits and experience of twins are totally different. If primary evidence is not lead of the contents of the document then it will lead to complete confusion and chaos. Thus, the permission of the court to lead secondary evidence becomes necessary. Otherwise, One party will lead his evidence as per his own wishes. It will lead to complete wastage of time of the court. Otherwise also, why a party should not prove the contents of the documents by way of primary evidence.

JUDICIAL INTERPRETATION BY HIGH COURTS QUA PERMISSION

There is a divergence of opinions amongst various high courts wherein-

(a) In one set of ruling^[3*] provides that no permission is required for leading secondary evidence. The court may at the time of final arguments may decide about the same. Serious objection to such a view is that at the fag end of the trial and during course of arguments, the courts comes to this conclusion that party has failed to provide justification for leading secondary evidence. This set of rulings also lays down that no application supported by an affidavit is required to be filed. Without filing of application and seeking permission of the court, the party is competent to lead secondary evidence. The courts have further held that it has not been mandated anywhere in the Act that application has to be filed under all circumstance. It is humbly submitted that there are number of provisions under the Indian Evidence Act and other Acts(supra) wherein it is not specifically provided that an application is required to be filed. The legislature in its wisdom has not provided under various acts that an application is required to be filed. Such logic does not hold good.

[3* 2019(9) RCR(C) 3009, 2018(3) PLR 181, 2015(5) RCR(C) 941, 2018(4) RCR(C) 409]

(b) The other set of rulings^[4*] have categorically held that an application supported by an Affidavit is required to be filed for seeking permission to lead secondary evidence. In the absence of such application, no party is competent and that too as a matter of right, can lead secondary evidence. Seeking of permission from the court is, thus, mandatory. In absence of such permission the secondary evidence can be outrightly rejected.

[4* 2012(44) RCR(C) 90, 1993(2) RRR 367. 2012(5) RCR(C) 701, 2015(58) RCR(C) 955, 2002(3) RCR(C) 185, 2010(30) RCR(C) 488, 2000(2) RCR(C) 246, 2009(5) RCR(C) 430]

Otherwise also, over the years, a practice has been adopted by the courts/litigants to the effect that they file an application supported by an affidavit enumerating the circumstances laid down in Section 65 of the Act to seek permission of the court. The court after being prima facie satisfied about the existence, loss and proof of the primary evidence, may permit the party to lead secondary evidence. The grant of permission by the court is thus conditional. The onus of proof is on the party leading evidence to prove the existence, loss and proof of the document.

There is plethora of case laws on the point as to in what cases the said conditions have been fulfilled by the party. Secondly the court can decide about the admissibility of such secondary evidence, which is sine qua non or the grant of permission. No hard and fast rules can be laid down in this regard. It depends upon the peculiar facts and circumstances of the case. There may be innumerous circumstances which may exists in a particular case. Otherwise also the law, its interpretation and application goes on varying with the change of circumstances and the changes which may take place in the society from time to time. Law has to adapt according to the changed circumstances.

(c) INTERPRETATION BY SUPREME COURT

The apex court of India^[5*] has categorically laid down that filing of an application supported by an affidavit is must for permission to lead secondary evidence. The party has to lay down the foundation for adducing secondary evidence.

[5* AIR 2000 SC 1759, AIR 2011 SC 1492, 2015(4) RCR(C) 1023 AND 2020(2) RCR(C) 510]

For example:- In a suit for specific performance filed on the basis of an agreement to sell, a photostat copy of the agreement of sale is annexed with the plaint under order 7 Rule 14 CPC. Later on, during the course of evidence the plaintiff moves an application for permission to lead secondary evidence on the ground that the original agreement of sale has been lost by him prior to the filing of the suit. No such fact is either pleaded in the plaint or replication. In these modern days of advance technology, such a Photostat copy can be prepared at any time. Whether in such circumstances, can permission be granted or not?

QUESTIONS TO BE CONSIDERED

i. Whether the view taken by the Apex Court is applicable?

ii. Whether judgments of the High Courts holding that not such application is required to be filed is correct interpretation of law?

iii. Whether prior permission of the court to lead secondary evidence is mandatory or not?

PER INCURIAM AND ARTICLE 141 OF THE CONSTITUTION OF INDIA

The answer to the questions posed above is that the law laid down by the Apex Court of India is binding upon all the courts in India under Article 141 of the Constitution of India. The law laid down by the Apex Court is applicable and has to be followed by the various High Courts in its letter and spirit.

Secondly, the doctrine of “per incuriam” which lays down that any judgment rendered by any court without discussing or differentiating the earlier judgment is bad in law. If the court comes to a different conclusion then it has to refer the matter to a higher bench. Thus, the view taken by the various high courts without discussing the earlier law especially of the Apex Court of India is bad in law. Such an interpretation of law is liable to be ignored as inapplicable and against the law.

CONCLUSION

From the above discussion of the various provisions of the Act and the judicial decision it becomes abundantly clear that the view of various High Courts that no permission is required to lead the secondary evidence is not the correct interpretation. An application supported by an affidavit is required to be filed for leading secondary evidence. No one can be permitted to lead secondary evidence without seeking the permission of the court.

[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 visiting 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

There are divergent views on the interpretation of section 52 of TPA and the doctrine of lis-pendence. Whether, there is any resemblance between the provisions of section 52 TPA and the essentials of lis-pendence in any manner. This dilemma is sought to be cleared by the present article.

The owner of the property has every right to alienate the same in any manner whatsoever he likes. No restrictions on his right can be imposed to alienate the said property. Even if the property has been transferred subject to a condition or limitation absolutely restraining the transferee from parting with or disposing of his interest in the property is void. Such like restrictions are imposed in the sale deed/conveyance deed executed by the local bodies or Govt. department regarding the residential plots/flats/industrial plot. The sole purpose of posing such restrictions on the use of the property is that nobody is able to convert a residential property into commercial or an industrial plot into a residential plot by carving out the sub-plots. Such like bodies are competent to impose such restrictions on the use of property. However, no restriction can be put on the right of alienation of the property. If such like restrictions are maintained and upheld, then, the purpose of ownership of a property will be rendered nugatory and otiose.

Section 10 of the Transfer of property act is reproduced as under :-

Section 10 of Transfer of Property Act prohibits putting of such like restriction on alienation of the property and the same is introduced as under:-

10. Condition restraining alienation.- Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

According to this section, any condition, restraining the person from disposing his property is void. However, a question which frequently arises in the civil litigation is that if the person/ defendant disposes of or alienates the property in its entirety or in parts, then what are the consequences thereof. A lot of time is wasted in deciding this question by the courts. The questions, which arise are, as to whether the transferee pendent lite is to be impleaded as a party to the lis or not or whether any right is given to him to file a separate written statement or whether he can independently defend the said case.

Lis pendence viz a viz section 52 of Transfer of Property Act; comparative study;

The Indian legal jurisprudence is primarily based on the British legal jurisprudence. Most of the acts, now in force in India, were enacted during the period the British ruled India. The Transfer of Property Act, 1882 was brought on the statue book by the British Empire. Though, the provisions of entire TPA were not made applicable in the State of Punjab, yet, certain provisions were made applicable to the State of Punjab from time to time. It may be mentioned here that in England, there is no act governing the Transfer of Property. Certain principles and phrases are in vogue in England viz. Caveat Emptor, Lis pendence etc. which were applicable to the Transfer of property. Most of the case law is based on the sole premise of the interpretation of lis pendence given to it by our judiciary.

Generally, when the provisions of Transfer of Property Act are taught to the law students in a law college, it is usually said that Section 52 of the Transfer of Property Act contains the principles of lis pendence. In this section, it is nowhere provided that any alienation made during the pendency of any litigation shall be subject to the final outcome of the suit. The British people knew that there are certain deficiencies in the principle of lis pendence. To overcome the said short comings, they enacted section 52 of the Transfer of Property Act in an entirely different manner, then the interpretation of Phrase lis pendence, which governed Britain.

Section 52 of the Transfer of Property Act.

52. Transfer of property pending suit relating thereto.-During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

7[Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]

For applicability of this section, the following requirements are essential.

i) There has to be a suit or proceedings pending.

ii) The said suit or the proceedings must be pending in any court, having authority within the limits of India. The word court has been defined in section 2 of CPC.

iii) The proceedings must not be collusive.

The word collusion has been defined by Hon’ble Supreme Court of India in “Sukhnandan Singh etc. v. Jamaiat Singh, AIR 1971 SC 1158” as under:-

“Collusion in judicial proceedings is normally associated with secret arrangement between two persons that one should in2stitute a suit against the other in order to obtain the decision of the judicial tribunal for some sinister purpose. In such a proceedings, the claim put forward is fictious, the contest feigned or unreal and the final adjudication, a mask, design to give false appearance of a genuine judicial determination and this is generally done with the object of confounding third parties. In such a proceedings, the contest is a mere sham.”

This rule was followed by Hon’ble Mr. Justice V.K. Jhanji, of Punjab and Haryana High Court in judgment “Ram Singh v. Sohan Lal, 1994(2) RRR 668“.

iv) Any right to immovable property is directly and specifically in question.

v) The property cannot be transferred or otherwise dealt with by any party to the suit or proceedings, so as to effect the rights of any other party, thereto under any decree or order, which may be made therein.

vi) The said alienation must be made under the authority of the court and on such terms as it may impose.

Thus, the bare reading of this section, does not in any way suggest that the alienation shall be subject to the final outcome to the suit. The moment a suit is filed regarding any immovable proprety, the restriction or alienation comes into force on the date of filing of the suit, for which no order of injunction is required to be passed by any court. The party, who intends to alienate the property or otherwise, alienate the property, transfer the property or deal with the property has to seek the permission of the court, where the suit is pending and the court may permit any such party to do so or such terms as it may impose.

There are few judgments of Punjab and Haryana High court, which have applied the principles laid down in section 52 Transfer of Property Act in its true letter and spirit. Hon’ble Mr. Justice Ashok Bhan (as his lordship then was) has observed in Sunita Jain v. Chander Kanta, 1996 (1) RRR 331 as under:-

“8. I have ordered that the property be transferred only after taking possession from the court and bringing on record the proposed vendees, in order to bind them to the decree which may ultimately be passed in the suit, to safeguard the interest of both the parties, which under the facts and circumstances of the present case, is just and proper.”

Similarly, Hon’ble Justice Mr. V.K.Jhanji, in case “Kusum Tondon v. Kanwal Tondon, 1997(2) RCR (Civil) 364” has gone a step further and has held that

“However, in order to protect the interest of appellants, if any, in that suit, it is ordered that in case the respondents alienate the property, they would make aware the vendee about the pendency of litigation by making a mention of the same in the sale deed.”

However, the said procedure is not being followed. Application for injunction for restraining the alienation of property remains pending for years together, resulting into first appeal, revision and SLP to the Supreme Court of India. Any such proceedings are not required in view of the provisions of section 52 of the Transfer of Property Act are applied in its true sense to any such proceedings or suits. It is often observed in the judgements that alienation if any, will be subject to the principle of lis pendence.

Consequences of alienation:-

A defendant may feel frustrated by the long pendency of the suit. Out of sheer frustration or just to complicate the matters, he alienates the property to third person after suppressing the fact of the pendency of the litigation. Sometime, the transferee pendent lite comes to know about the proceedings only when the summons in the execution are served on him. He shocked like hell. His entire savings in purchasing the property come at a stake.

The Hon’ble Supreme Court of India in the judgement in case Civil Appeal No. 10325 of 2010 (Arising out of SLP Civil) No.163 of 2010) decided on 08.12.2010 in case title “T.G. Ashok Kumar v. Gobindammal and other“, in para no.13 has held as under:-

It is necessary to refer to the hardship, loss, anxiety and unnecessary litigation caused on account of absence of a mechanism for prospective purchasers to verify, whether a property is subject to any pending suit or a decree or attachment. At present, a prospective purchaser can easily find out about any existing encumbrance of a property either by the inspection of the Registration Registers or by securing a certificate relating to encumbrances (i.e. copies of the entries in the registration registers from the jurisdictional Sub-Registrar under section 57 of the Registration Act, 1908). But a prospective purchaser has no way of ascertaining whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. As a result, after parting with the consideration (which is many times the life time savings) the purchaser gets a shock of his life, when he comes to know that the property purchased by him a subject to litigation and that it may drag on for decades and ultimately, deny him title to the property. The pendente lite purchaser will have to wait for the litigation to come to an end or he may have to take over the responsibility of conducting the litigation, if the transferor loses interest after the sale………

The Apex court of India has aptly described the condition of the transferee pendent lite, when he is duped by the defendant by selling the property which is subject matter of litigation.

Amendments made in the State of Maharashtra and Gujrat in section 52 of Transfer of Property Act.

In the State of Maharashtra and Gujrat, an amendment was made to Section 52 of the Act, by adding sub-section 2, which provides as under:-

“2: Every notice of pendency of a suit or proceedings referred to in Sub-Section-1 shall contain the following particulars namely:-

(a) The name and address of the owner of the immovable property or any other person, whose right to immovable property in question;

(b) The description of the immovable property, the right to which is in question;

(c) The court in which the suit or proceedings is pending;

(d) Nature and title of the suit or proceedings, and;

(e) The date on which, the suit or proceedings was instituted.

The Hon’ble Supreme Court of India, expressed the hope that Law Commission and the parliament ought to consider the incorporation of such amendments or suitable amendments in section 52 of TPA to cover the existing void in title verifications or due diligence procedures. Nothing has been done so far by the Law commission or by the Central Government to comply with the directions given by the Apex Court of India till date. Provisions can also be made for compulsory registration of the decrees and in regard to attachment of immovable properties.

In Punjab, if an entry is made in the Municipal or revenue record maintained by a local authority, regarding the above said particulars, an unwary purchaser will stay his hands in purchasing any such property and invest his life time earnings and feels cheated thereafter.

A lot of litigation will be curtailed which is pending in the courts in Punjab in this regard.

Till date, no amendment has been made either by the Central Govt. or by the State of Punjab in section 52 of the Transfer of Property Act in consonance with sub-section (2) inserted by them on the statue book.

Serious Action:-

A serious action for disobedience of the provisions of section 52 under order 39 rule 2 A CPC, ought to be taken by imposing punishment on the seller as provided therein. It has also been noticed that in the registration manual, at the time of registration of sale deed, the Sub Registrar requires that an entry should be made in the document to the effect that no case is pending in any court of law in India regarding the said property. Most of the time, the sellers conceal this fact about the pendency of the case by inserting a false recital. A criminal case ought to be taken against such unscrupulous persons in a quick manner to reduce the frauds being committed by them.

The judicial view that in proceedings for taking action for disobedience of injunction, the plaintiff is required to prove the case beyond all reasonable doubts, just like a criminal case. It is humbly submitted that proceedings under order 39 rule 2A CPC or disobedience of injunction are not criminal proceedings but are provided in the court of Civil Procedure. In civil cases, the case is decided on the basis of preponderance of probabilities while a criminal case has to be proved beyond any shadow of doubt. In the cases, regarding alienation of the property only documentary evidence is sufficient to prove the breach of injunction and no oral other evidence is required to be led. In case, the courts will take a strict penal action against persons who disobey such order, the majesty of law will be upheld. No one will dare to take the law lightly.

Rights of the Transferee Pendente Lite:–

Once the property is sold during the pendency of litigation, various contingencies come into existence between the parties to the suit and transferees pendent lite which are discussed hereinafter:-

1) Impleadment of Transferee Pendente lite. There is a divergent view taken by various courts, as to whether the transferee pendent lite has to be impleaded as a party to the suit or not. In case, the transferee pendent lite is impleaded as a party, then, notice is sent to him, which again leads to unnecessary prolonging of litigation. Who has to make an application for impleadment of the transferee pendent lite as a party to the suit, is also a matter of dispute.

2) Rights of the Transferee pendent lite. Here, again there are divergent views are taken by the various court, as to whether the transfer pendent lite has to be given an opportunity to file a written statement or not. This is also one of the bone of contention as to what plea can be taken by the transferee pendent lite in the written statement. In most of the judgments, it has been held that he cannot take a plea which was not originally taken by the defendant in a suit, who has made the alienation. It is said that he is to swim and sink along with original defendant. Whether, the transferee pendent lite ought to be given an opportunity to cross examine the witness already examined and to cross examine the witnesses a fresh.

3) Plea of bonafide purchaser:- Filing of the suit is a notice to the entire world. No person can feign ignorance regarding the pendency of the suit. Otherwise in view of the explanation attached in section 52 of the Transfer of Property Act, a suit is deemed to have been commenced from the date of presentation of the plaint or institution of the proceedings in a court of competent jurisdiction, if the date of alienation, is after the presentation of the plaint, then, he is dubbed as transferee pendent lite.

I am already sent a representation to the State of Punjab for making asuch amendment on the lines of the amendment made by State of Mahrashtra and Gujrat, be also made applicable to Punjab.

The true and correct interpretation of section 52 as suggested above, will reduce the number of cases, pending before the Civil courts on account of the illegal alienation made by the unscrupulous defendant to dupe the innocent and unwary purchasers. Even the criminal litigation on the ground of fraud will also come to an end, will also be minimum, as in case, if an entry is made in the records, regarding the pendency of the case, then, no person will purchase the property and involve himself in litigation.

It is also settled principle of law that in case there is no express provisions contained in the act, then, the court invoking the inherent powers u/s 151 of the Code of Civil Procedure, can pass order on the first date of hearing that an entry regarding the pendency of the suit or proceedings shall be made in the concerned record and impose such conditions as contained in section 52 of TPA, so that the innocent purchaser is not involved in uncalled for litigation.

Conclusion:-

In the end, it is humbly suggested that the followings steps ought to be taken by the courts while disposing of the application for injunction seeking the relief of alienation;

a) The seller ought to take permission from the court to sell the property.

b) The seller ought to bring the proposed purchasers on the court file, as parties to the suit.

c) The seller ought to make a recital in the Transfer Deed about the pendency of the case.

d) Any other condition, which may be imposed by the court viz. deposited of the sale consideration in court, so that if the defendant is found entitled to the property in suit, he can be suitably compensated and does not have take resort to separate proceedings for the same.

[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 visiting 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

Introduction:-

Whether the legislature has left a big lacuna in the Limitation Act by not providing any limitation for filing a suit claiming inheritance of the deceased? Whether the judicial pronouncements holding that no limitation is prescribed, to file a suit on the basis of inheritance, are correct or not? Whether the plea of adverse possession/ouster which is available or ought to be taken by a co-heir against another co-heir, while defending the suit filed to claim inheritance of the deceased? Whether the provisions of an enactment can be interpreted or applied in isolation without discussing the other provisions contained in the same Act or all other allied acts? Such like questions crop up in the mind when an advocate starts studying or searching the case law on the point. He is left in a dilemma as to what ought to be his line of action or choosing a cause of action in either filing a suit on the basis of inheritance of a deceased or taking a defense to defeat the claim of the plaintiff on the plea of limitation. In the present article all the above posed questions will be dealt with in a seriatim manner and attempt will be made to critically analyse the law on the subject.

Before adverting to the legal arena, it may be pointed that every mortal as his own lifetime. The lifespan of a man is also fixed by the god. No one can live beyond the time limit fixed by the almighty. Although, the expiry date of mortal is not known yet it is a hard truth. Even the pharmaceutical company or other leading manufacturers have to mention the date of expiry of its product on the box containing the material/medicines. Can it be assumed and presumed that no expiry date for filing a suit will be prescribed by law. On study of limitation act, we find that expiry date of filing of a lis/suit has been fixed for every type of suit which can be conceived by the human brain.

Inheritance does not remain in abeyance:-

The moment a person dies, his estate is inherited by his legal heirs. It is settled law that inheritance does not remain in abeyance^[3*]. It clearly implies that there has to be someone who is the owner of the property at all points of time. A property cannot be said to be not owned by any person. If the owner cannot be ascertained, then, by applying the principle of escheat property vests in the Govt. Now the question, as to who is the legal heir, of the deceased, may be a question of serious dispute. There can be rival claims with regard to the ownership of the property amongst various co-owners on different grounds. One of the mode of inheritance is to claim on the basis of natural succession. Natural succession means that the property is inherited by all the legal heirs without the hurdle of any testamentary disposition. Natural succession is copiously dealt with the provisions of Hindu Succession Act, 1956, which prescribes the legal heirs of the deceased, when a person dies intestate and deals with the law of intestate succession.

[3* 2008(4) RCR Civil Page-9, 1985 PLJ Page-82(DB)]

Second mode by which inheritance can be claimed is on the basis of bequest made by the property owner during his life time by executing a Will. In such a case, the property owner during his life time, bequeaths the property belonging to him to some of his heirs, while leaving/depriving some of them from his inheritance. The mode of bequest by way of Will is laid down U/s 63 of the Indian Succession Act, which prescribes a detailed procedure of executing the Will, who will be the attesting witnesses, what is the role of attesting witnesses, what formalities are to be observed by the testator in executing the will. Generally, one usual recital is made in all the wills to the effect that the testator is executing the will so that after his death, no dispute may ensue amongst his legal heirs. However, the said will itself become the bone of contention/dispute amongst the legal heirs. Once the litigation challenging the will is commenced amongst the co-heirs, it consumes decades to come to a logical end.

Once the property vest in the legal heir after the death of last property holder, the rights and liabilities of each of the co-heirs comes into operation. The exercise of rights or performance of duties is sine qua non for an heir to claim the property. Can one co-heir sleep over his right in a property for decades together and after passage of long interval, wakes up from the slumber to claim his rights, is also one of the major point of discussion.

Status of co-heir:-

Under section 19 of the Hindu Succession Act, 1956, which provides as follows:-

“19. Mode of succession of two or more heirs.-If two or more heirs succeed together to the property of an intestate, they shall take the property,-

(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and

(b) as tenants-in-common and not as joint tenants.”

Mulla in his famous books, principles of Hindu Law (Eighteenth Edition), while interpreting the provisions of section 19, has analyzed as under:-

“In a tenancy-in-common, each sharer has an independent share in the common property and ordinary cannot act for the others or assumed any authority of a manager unless so appointed by all the others. Thus, for instance, one of the several female heirs, who are co-tenants, cannot alienate the property held as co-tenants, though, or course in a given case, the court may as far as possible try to protect the interest of the alienee on equitable considerations. A co-owner, as such, it has been held in the context of present section, has no authority to enlarge the period of limitation, as against the other co-owners, by any acknowledgement of liability or payment of interest or principal.”

Dr. Paras Diwan in his treatise “Modern Hindu Law” Twenty First Edition (2012) has opined as under:-

“In both cases (joint tenants and tenants in common) property is held jointly but there are vital difference in the incidence of both. Joint tenancy means that the shares of the joint owners are not specified and in the event of death of one, the other takes his interest by survivorship. Tenants in common means that the share of each co-owner is a specific share and on his death it devolves on his shares.“

Thus, a tenant in common is different from a co-sharer of a property. A co-sharer can represent the other co-sharers. However, a joint tenant in common cannot act on behalf of the other joint tenants in common.

Judicial Pronouncements holding no limitation for inheritance:-

There are plethora of judicial pronouncements, which go on to hold that no limitation is prescribed for filing a suit on the basis of inheritance.^[4*]

[4* 2008(4) RCR Civil 9, 2008(4) RCR Civil 178, 2008(2) RCR Civil 487, 1985 HRR 345(DB), 2002(1) SLJ 778]

According to these judgments, the inheritance can be claimed at any point of time. No time limit is provided for filing a suit on the basis of inheritance. The only defence available to the person defending the case is that he has either to claim ouster of the other co-heirs or plead and prove his adverse possession to the property. It is a herculean task for him to prove either of the two defences of ouster and adverse possession.

Whether these judicial pronouncements have taken a correct view after discussing all the provisions of limitation act or other allied acts governing/operative in this field.

This Limitation Act, 1963, prescribed limitation for every type of suit which can be conceived by a human brain. Holding to the contrary shows that somewhere the correct position of law has not been brought before the Court, which has led to such a misinterpretation.

Inheritance not implemented in record

In case, after the death of the owner, if the property remains entered in the name of the deceased, then, it can be assumed and presumed that any heir can claim his share in the property at any point of time. The other co-heir may be in possession of the property as tenants in common u/s 19 of the Hindu Succession Act. There is no bar for any co-heir to claim his share in the property by filing the appropriate legal remedy in a competent court of law. No limitation will bar the said suit filed by him under any of the circumstances.

Purpose of Limitation:-

The sole purpose of prescribing limitation for all types of suits, proceedings/appeals/applications is that memory may not fade away with the passage of time and the sequence of events may not become elusive with time. In the absence of any law of limitation, the courts will be burdened with plethora of cases which would become a nightmare for the courts to decide the said litigation for many generation together. The courts are already under severe criticism for the delay in deciding the disputes amongst the litigants. Huge pendency of suits at present has overburdened the judiciary in deciding the cases. It is settled law that limitation bars the remedy but does not distinguish the right. Defence can still be taken in response to a suit filed on the basis of a suit filed claiming any such right on other grounds.

It has been held by Supreme Court of India^[5*] as under:-

“The Law of limitation may harshly effect a particular party. It has to be applied with all its rigour when the statues so provides.

Section 3 of the Limitation Act, which provides as under:-

(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

[5* 2013(3) ACJ 311 (SC)]

The limitation to file a suit cannot be extended by any court under any of the circumstances, whether legal, moral or equitable. Law has to be harsh. Stale claims cannot be entertained on ground of expediency also, but the court does not possess any power to condone the delay in filing of a suit. Thus, it can be safely deduced that law helps the vigilant and not the persons, who sleep over their rights. One ought to be prompt and vigilant enough to assert his right in the property. Postponement of one’s right will always prove to be fatal and disastrous leading to various losses.

Normal Course of events:-

The Apex court of India has categorically held^{[5*] [6*]}

“that when no period of limitation is fixed but in the normal course of event, the period, the parties required to file a suit/proceedings ought to be a guiding factor.“

[5* 2013(3) ACJ 311 (SC)]

[6* AIR 2000 SC 671]

Such a dictum nullifies the version that no limitation is prescribed for filing a suit on the basis of inheritance. Article 113 of the Limitation Act is a complete answer to this argument. Now the question arises from bare reading of article 113 of the Limitation Act, as to when the right to sue accrues to a co-heir to file such a suit. The denial of right cannot be made to be the sole criteria to file such a suit. It depends on the facts and circumstances of each case on its peculiar effects. It also depends upon the steps taken by a co-heir, after the death of the owner to assert his own rights in the property of the deceased. In the absence of any assertion of right, how there can be a denial? Secondly, why the co-heir who is enjoying the property and is in possession of the property or dealing with the property as owner, will go all the way to deny the title of such other co-heir, so as to give him a cause of action to file the suit.

Thus, the party cannot be allowed to sleep over his rights for a considerable time and then one fine morning comes forward to assert his right over the property. Law helps vigilant.^[7*]

[7* 2009(2) CCC P-708(SC)]

An exception can be said to exists, when a co-heir, who is living abroad and has not visited India for a long period, then, he may file the suit on pleading the said circumstances of his absence from the country for delay in filing of the suit. Otherwise, with the advent of scientific gadgets, mode of communication, facilities provided by the respective governments and public awareness of law, he can approach the appropriate authority to enter his claim as one of the co-heirs and assert his right to the property.

One can get the entry made in the revenue record/municipal record, showing that he has also inherited the property or the property has been bequeathed to him. By getting an entry made in the record will show his vigilance in the matter to fortify his claim. He can also write a letter/send a written communication through email or other mode available to him, to local authority to include his name as one of the co-heir of the deceased. Such an action will prove his bonafidies to claim his right in the property of the deceased.

Natural Inheritance/Bequest

In the case of natural inheritance, if the property continues to remain recorded in the revenue/municipal record or other record in the name of the deceased, then it can be said that no limitation is provided to claim his share in the property. However, in case, the Will is executed and is implemented and acted upon in the record, then, there is no question of unlimited period of limitation for filing a suit for inheritance.

Section 41 of the Transfer of Property Act

41. Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it:

Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

Under the provisions of this section, if one of the co-heirs allows another co-heir to represent himself to the general public that he is the exclusive owner of the immovable property, then, he can transfer the same for consideration and the transfer shall not be voidable on the ground that transferor was not authorize to make it. In this section, the word consent, express or implied is of utmost importance.

The implied consent, referred to in this section as to be interpreted as per the interpretation clause, contained in section 3 of Transfer of Property Act, which reads as under:-

“a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Provided that–

Explanation II.-Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Thus, according to this interpretation clause, the implied consent in allowing one co-heir to assert his ownership over the property will be deemed to be in the notice of the other co-heir and he cannot be feign ignorance regarding the same.

Section 115 of the Evidence Act Estoppel by acquiesce

The principle of acquiesce is also applicable in such cases, where one co-heir does not raise any objection to the other co-heir representing himself to be the owner of the property.

Section 31 of the Specific Relief Act.

According to this section, when any person against whom a written instrument is void or voidable, and who has reasonable apprehension then such document if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the court may in its discretion, so adjudged it and order it to be delivered up and cancel.

This section has to be read in conjunction with section 34 of the Specific Relief Act, 1963, where any declaration is being sought by any person as to any legal character or any right as to any property against a person who is denying or who is interested to deny his title to such character or right, then, he has a right to file a suit for seeking a declaration regarding his rights with a consequential relief of possession.

In such like cases, the limitation applicable will be at the most 12 years from the date when the entry on the bases of a bequest is made in the revenue/municipal or local authorities record. On this principle also, it cannot be said that there is no limitation prescribed for filing a suit based on inheritance.

Void Order:-

Even a void order has to be got declared as void from the court u/s 31 of the Specific Relief Act. However, if a void act has been implemented and acted upon and is implemented in the record, then, that has to be challenged and the said act has to be got set-aside by filing an appropriate suit in a court of law.

Word of caution by Supreme Court:-

A serious word of caution has been laid down by the Supreme court of India viz a viz the application of the law of limitation. It has been held in the case titled as “State of Punjab v. Gurdev Singh, AIR 1992 SC 111 : AIR 1991 SC 2219 (Full Bench) as under:-

“4. First of all, to say that suit is not governed by the law of limitation, runs a foul of our limitation act. The statue of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act, a suits, appeal or application instituted after the prescribed period of limitation, must be subject to provisions of section 4 to 24 be dismissed although limitation has not been setup as a defence……… If a suit is not covered by specific articles, prescribing a period of limitation, it must fall within the residuary article. The purpose of residuary article is to provide for cases, which could be covered by any other provisions in the limitation act. The residuary article is applicable to every variety of suits, not otherwise provided for. Article 113 (corresponding to article 120 of the Act of 1908) is a residuary article for cases not covered by any other provisions in the act. It prescribed a period of three years, when a right to sue accrues………….. The words right to sue ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when cause of action arises that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or well raise a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. (See:- Mt. Bole v. Mt. Koklam, AIR 1930 PC 270 and Gannon Dunkerley and co. v. Union of India, AIR 1970 SC 1433)”

Similarly, the Supreme Court of India has held in case titled “M. Meenakshi v. Metadin Aggarwal”, 2006(3) ACJ 289 as under:-

“It is well settled principle of law that even a void order is required to be set aside by a competent court of law in as much as the order may be void in respect of one person but may be valid in respect of another person. A void order is necessarily not nonest.”

According to third column of article 113 the words right to sue ordinary means, the right to seek relief by means of legal proceedings. Generally, the right to sue accrues, only when the cause of action arises, i.e. the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendants against whom the suit is instituted.

Implementation of bequest and dealing with property by alienation in whole or a part of it, provides right to sue. If the agreed co-heir does not make inquiry or takes any step in this regard, then, he will be deemed to have knowledge of such bequest.

Fraud/Misrepresentation:

It is settled principle of law that fraud/misrepresentation vitiate every action. In case, one co-heir prepares forged and fabricated documents of the deceased to claim his entire property and is successful in getting the property mutated in his name in the revenue/municipal/local authorities record, then, such an action is vitiated by fraud and misrepresentation. The action for setting aside such proceedings on the basis of fraud and misrepresentation can be initiated by an aggrieved person when he comes to know of such a fraud or misrepresentation. In that case, the limitation will start from the date of knowledge of such fraud or misrepresentation u/s 17 of the Limitation Act. It has been settled in catena of judgments that fraud has to be proved beyond all reasonable doubts in civil suits also. In the absence of any such proof of fraud, the action commenced by the aggrieved person may fail in the court of law.

Harmonious interpretation:-

It is settled principle of legal jurisprudence and cardinal principle of interpretation of statues is that a harmonious interpretation of various sections/acts have to be made for arriving at a right decision in the absence of such a harmonious interpretation, it can lead to a wrong conclusion. All the relevant sections/acts have to be taken into consideration by an authoritative pronouncement dealing with all the aspects stated above, to clear the mist existing in the existing law.

From the discussion and the case law discussed above, it is humbly submitted that the judgments holding that no period of limitation has been prescribed for filing a suit for inheritance, needs to be reviewed and an authoritative view ought to be taken so as to clarify the mist created by various provisions referred to above.

[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 visiting 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

Court cases are always decided on the basis of the evidence recorded in the case. No effective judgment can be passed by the court without recording and appreciating the evidence fortifying the facts of the case. The trial of a civil case starts after framing of issues with the process of recording of evidence. Evidence consist is of two types i.e. Oral Evidence and Documentary Evidence. Witnesses are summoned/examined by both the parties to prove their respective cases. Some witnesses make only the oral deposition without referring to any document while other witness depose regarding the document written by them, attested by them or signatures/writing identified by them while other witnesses depose regarding the document scribed by them or attested by them or by identifying the signatures/writing of the executants/witnesses of these documents. The examination of a witness has been provided in section 137 of the Evidence Act, 1872 while cross examination of a witness is provided in section 138 of the Evidence Act.

The statement of a witness consist of three parts:-

1. Examination in chief is recorded by the party calling the witness

2. Witness is cross examined by the adverse party

3. Re-examination can be conducted with the permission of the court in case there crops up some ambiguity or a new fact is brought in the cross examination.

EXAMINATION IN CHIEF

Prior to the amendment of court of Civil Procedure, the examination in chief of the witness was recorded in open court in presence of the opposite party. The scenario has changed after the amendment of the Code of Civil Procedure in the year 2002. Under the amended provisions of order 18 Rule 4 CPC, the examination in chief has to be tendered by the party calling the witness in the form of a duly sworn affidavit. This practice has been adopted to save the time of the court in recording the examination in chief in open court. Such an affidavit is dictated, typed, signed and attested in the chambers of the advocates tendering the same. The opposite party has no control to object to the contents of the affidavit. Most of the High Courts have not framed any rules governing the preparation, contents and mode of exhibition of documents in the said affidavit.

An affidavit assumes the character of an affidavit after its attestation by the Oath Commissioner or Notary Public. As a logical consequence, photocopies of the attested affidavit ought to be supplied to the opposite party alongwith the true copy of the documents exhibited in such affidavit. Such a practice ought to be followed strictly. Adjournments are being sought by the unscrupulous litigants on the ground of non-supply of the copy of affidavit alongwith the documents with a view to delay the proceedings in the case. Most of the time, extraneous facts such as legal objections or other averments of the plaint are verbatim reproduced in the affidavit. Judges as well as the opposite party should be cautious enough at the time of tendering of affidavits in chief to object to the same. The court should ensure that photocopies of the attested affidavit with the copy of the documents exhibited ought to be supplied to the opposite party so as to avoid unnecessary adjournments on this ground.

CROSS EXAMINATION:-

Cross examination is a powerful and a valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of a story. The extent of its effectiveness, no doubt depends on the dexterity of the weilder of this weapon. But every cross examiner should and can if he is careful and indicate in cross examination, whatever part of the evidence given in the examination in chief is challenged and an omission to do will lead to the inference that the evidence is accepted subject of course to its being assailed as inherently improbable.^[2]

Woodroffes and Ameer Ali in their commentary on Law of evidence In India in 12thEdition(1969) has described aptly the role of the court in the following words:-

“The whole subject of the Viva Voce examination of witness in open court is confined of necessity to a very great extent to the sound judicial discretion of the judge presiding at the trial; and but few positive and unbending rules have been laid down with regard to it. The control of the Court here referred to, is that it possesses over the manner and the extent of an examination of a witness. The admissibility of testimony is another question. The time and manner, however, of examining the witness is in the discretion of the judge before whom the trial is held. The discretion extends to determine the length of time and the extent to which the witness may be examined. So, the judge may interfere and protect the witness against irrelevant inquiries and overrule a question repeated after being asked several times, substantially answered and allow the witness to furnish a proper answer in a proper manner to a question before permitting another to be put.”

EFFECT OF AMENDMENT OF CODE OF CIVIL PROCEDURE

After the amendment of code of civil procedure, the task of recording the cross examination has been relegated to the Local Commissioner appointed for the purpose. The local commissioner has no power/control to decide the admissibility of the question. His job is clerical and to mechanically record the answer to the question. As a consequence thereof, lengthy, prolix cross examination is allowed to be recorded which is seldom referred to during the course of arguments. The expenses of the local commissioner for getting the cross examination recorded is postponed to several sittings putting unnecessary financial burden on the party.

Where commission is issued for examination of a witness, the commission has no power to disallow question, he considers irrelevant as he cannot be called a judge within section 138 of the Evidence Act.^[3]

In the opinion of the author, the cross examination of material witnesses should be recorded under the direct supervision of the judge who should intervene and curtail the lengthy cross and asking of irrelevant questions. Hasty disposal of cases often lead to injustice. The court ought to dispense justice and not dispense with justice.

VOLUNTEERING EVIDENCE

The latest trend which has started is that the witness in response to the answer to a specific question tends to repeat the facts already stated in the examination in chief or omitted to be stated in chief. Further such volunteering information/evidence leads to asking of volley of question to nullify the effect of such volunteering information. When objection is taken in this respect by the cross examiner, normally the judge allows the same to be recorded on the ground that it will be seen/adjudicated at the time of final arguments. Such a deferment is fraught with legal consequences. Often no decision is given in the final judgment.

Woodroffe’S and AmeerAli(Supra) has opined on this issue as under:-

“Volunteering evidence

A witness may not foist into his answer in any examination statements not in answer to the question put to him. This is called “Volunteering evidence” and the pleader of the opposite party should be on his guard to check its introduction by objection. The trial judge should upon motion strike out answers that are not in response to questions asked, i.e. those answers which state facts not called for by the questions or goes which express an opinion as in the case of experts. But when a part of the answer is not in response to the question, only, that part will be stricken out which is objected for not being responsive”

EFFECT

Applying the view expressed by the learned Authors(Supra), it is crystal clear that no volunteering information should be allowed to be recorded when an objection is being taken by the opposite party. Judicial file should not be overburdened by such uncalled utterances. In case, the question is ambiguous and is capable of admitting two answers, only then, the question should be recorded and the answer may also be recorded separately

For example if the question is asked as under:-

Q-Whether you have stopped beating your wife?

Such a question if answered by simple yes or no will lead to legal complications. Thus, the answer of the witness can be as under:-

A. Since I have never beaten my wife, as such, there is no question of stopping the same.

CASE LAW

The author has been able to lay his hands only on one judgment on this issue which has been rendered by the Bombay High Court wherein it was held that where a witness volunteers a statement and it is not in response to a question of counsel who is examining the witness. However, when the other party has no objection, the court may proceed with that part of the deposition which has come on record as a result of witness volunteering, to deal with the matter. If the opposite party objects to the same, then, it ought to be struck down.^[4]

[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. M No. 9814712425

[2] AIR 1954 TRAV & CO 152

[3] AIR 1960 Punjab 430

[4] 1998(2) MAH LR 843(Bombay)

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).