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