Vithal Ramrao Ingale (Patil) vs Navalbai Digambar Deshmukh
2002 Latest Caselaw 647 Bom

JUDGMENT

N.V. Dabholkar, J.

1. Heard Advocate Shri S.S. Choudhary for petitioner.

2. Revision petitioner-original defendant in Regular Civil Suit No. 24/1997 on the file of Civil Judge, Junior Division, Tuljapur, takes an exception to the order dated 30-8-2001 passed by the learned Judge pertaining to a document, "ancient document" produced before the trial Court. According to defendant, that is a document executed and registered by his adoptive father, while taking him in adoption on 8 Meher 1355 Fasli (i.e. some time in the year 1945-46 A.D.).

3. Even after obtaining say of the other side, the learned trial Judge has allowed the application partly. He has accepted the case of defendant revision petitioner that document is ancient document being more than 30 years old. He has also accepted that it came from proper custody, since it was in the custody of defendant, who claimed that he is the adopted son. Taking into consideration that the two conditions precedent for section 90 of Indian Evidence Act to come into play, are satisfied, the learned Judge, by the impugned order, observed that the document is to be exhibited (read in evidence) for limited purpose i.e. to the extent of genuineness of execution, attestation, signatures and handwritings and every other part in the document is to be presumed to be the signatures, attestations and handwritings of the persons, who are purportedly indicated to be executors, attesters and scribe of the document. The learned Judge, however, refused to read the contents of the document in evidence. It must be said that the learned Judge not shut the doors on the face of defendants, so far as proof of contents of the document. In the concluding part of the order, he observes "The defendant is at liberty to prove the contents of said document". He has exhibited the document to the extent of presumptions permitted by section 90 of Indian Evidence Act.

4. Section 61 of Indian Evidence Act requires that proof of the contents of the documents is ordinarily to be by primary evidence and in exceptional circumstances, by secondary evidence. By virtue of section 62, primary evidence means, a document itself produced for the inspection of the Court. Section 64 mandates that documents must be proved by primary evidence except in the cases carved out by section 65 of the said Act. According to Advocate Shri Choudhary, since the document itself is produced for perusal by the Court, even the contents can be read in evidence by the trial Court.

5. Advocate Shri Choudhary has placed reliance upon observations of the Supreme Court in the matter of Shri Lakhi Baruah v. Shri Padma Kanta Kalita, reported at . Having gone through the paragraphs relied upon by Shri Choudhary i.e. paragraphs 15 to 17 of the judgment, it can be seen that the issue regarding debate in that judgment was whether presumption under section 90 was available on production of a certified copy of an ancient document. We are not concerned with such controversy, because original document, which is claimed to be ancient document is produced before the trial Court and trial Court has accepted the same being ancient document and has also given benefit of all those presumptions, which can be raised by virtue of its being ancient document having come before the Court from proper custody, in the light of section 90 of Indian Evidence Act.

6. The dispute that remains is whether by production of original document, the contents stand proved. As prescribed by section 62, contents of the document are required to be proved by making the original document available to the Court and the document is now so available. The reason why the learned Judge has held that contents of the document are still not proved can be seen in the practice that is followed in the trial courts for proving the documents and contents of the documents. Ordinarily, the executor of the document is examined in order to swear on oath that contents were written by the scribe as desired by him and having ascertained that the contents are correct, he has signed the document in execution. In case, the executor is not available because of death, either the scribe and if scribe is not available, the attesting witnesses are examined in order to demonstrate to the Court that the contents of the document are as per instructions on desires of the executor. If none of them are available, as a matter of practice, the beneficiary of the document or executee in whose favour the document is executed is put into the witness box in order to swear that the contents in the document are as instructed by the executor. Thus, as a matter of practice, the trial courts do not exhibit the documents for the purpose of admission of contents of the document in evidence, unless oral evidence is tendered, that document before the Court is genuine one plus contents in the document are such as were desired, instructed and dictated by the executor.

This is not a rule of practice only, but it has its foundation in sections 61 and 62 of Indian

Evidence Act. Since section 61 requires that contents of the document should be proved by primary evidence and the document itself is primary evidence, production of original document is necessary in order to establish that document of particular nature was reduced to writing. It must be taken into consideration that the documents and their contents are relied upon by the parties in order to establish the agreement, contract, transaction, transfer or event embodied within the contents of the document. Therefore, merely placing the document in original for perusal of the Court would not be adequate to prove the event embodied within the contents. For that purpose, somebody who is a witness to the execution of the document, is required to enter the witness box and affirm that the contents of the document are true and correct, in the sense that events had occurred or parties had intentions and had accordingly acted, as depicted in the document.

7. In the present case, the document being ancient document and accepted to be so by the trial Court, it has drawn all the presumptions regarding truthfulness of the contents. As can be visualized from the practice followed in the trial courts, which is inevitable in view of sections 61 and 62 of Indian Evidence Act the learned Judge has deferred exhibition and admission in evidence of the contents of the document till defendants examine somebody from the witness box to state that the contents of the document are true and correct, as desired by the executor.

8. Advocate Shri Choudhary has expressed that defendants may face the difficulties in finding out the witnesses since the executor is dead, the scribe may not be alive. The same thing may be true about the attesting witness.

Availability of the witnesses can be judged from the contents of the document. When the defendant was given in adoption, he was given in adoption because his natural parents had elder brother. If the natural parents are not alive, the elder brother may be witness and Advocate Shri Choudhary has, during the course of arguments, stated that father, who took the defendant in adoption, died after about 10/11 years since the adoption. Therefore, it can be seen that the defendant, who is adopted son and beneficiary of the document executed, must have received custody of the document at the time of death of his adopting father, when he was about 14/15 years old and in that capacity, the defendant himself can be a witness, who can swear regarding correctness of the contents and invite the Court to read the contents in evidence as truthful account of the events. Unless such a procedure is followed, the learned Judge cannot be said to have used his discretion in an illegal or materially irregular way, when he said that the document is exhibited to the extent presumptions permissible by section 90 of Indian Evidence Act and it is required to be exhibited to the extent of contents, awaiting somebody affirming the correctness of those.

Otherwise also since the issue of proof of contents is kept open by the learned Judge, it is not necessary to revise the order.

9. In view of above, no interference is called for in the order of learned Civil Judge in revisional jurisdiction. However, it is clarified that it will be open for the defendant to lead oral evidence for the purpose of proving the contents as already desired by the trial Court. At the request of Advocate Shri Choudhary, it is further clarified that in case defendant had already closed the evidence before the impugned order was passed or during the pendency of this revision petition, he shall be allowed an opportunity to lead evidence for limited purpose i.e. proving the contents of this document.

Save and except above directions, the revision petition is disposed of.