Appreciation of Evidence in Civil Cases by Yashpal Singh

Download as pdf or txt
Download as pdf or txt
You are on page 1of 37

Page 1 of 37

PRINCIPLES OF
APPRECIATION OF EVIDENCE IN CIVIL CASES

– Yashpal Singh
Deputy Director, MPSJA

INDEX

I. Introduction

II. Important principles

1. Standard and burden of proof in civil cases


 Standard of proof
 Burden of proof
 A party cannot take advantage of weakness in case of opposite
party

2. No evidence without pleadings

3. Admission is the best evidence

4. Evidentiary value of registered documents

5. A party cannot approbate or reprobate at the same time

6. Doctrine of estoppel

7. Proof of documents
 Execution of document – how proved?
 Effect of proof of execution of document

 Admissibility of document is one thing and its probative value


another
 Objection as to admissibility of document

 Output of electronic records and requirement of certificate u/s


65B

8. Adverse inference and best evidence rule


 Non-examination of a party lead to adverse inference
Page 2 of 37

 Husband is competent witness for wife


 Non-production of document lead to adverse inference

9. Competency of power of attorney holder

10. Joint Hindu family and joint property


 Presumption of joint hindu family

 Property purchased from the funds of huf is deemed to be of HUF


 No adverse possession against co-sharers

 Purchasers' right in undivided and joint property

11. Document brought in light after undue delay

12. Notice received and not replied

13. Witness not appearing for cross-examination

14. Affidavits are not evidence

15. Absence of cross examination – effect of

16. Description in deed is not decisive of true character

17. Identity of property – dispute between plot number and boundaries

18. Nominee is agent of actual successors

19. Presumption of correctness of order sheet of court

20. Effect of correction in deposition sheet

21. Deposition to be read as a whole

22. Evidence of rustic villagers

23. Possession is prima facie proof of title


 Attributes of settled possession

24. Permissive possession does not automatically become adverse

25. Sale deed and agreement to sale


 Agreement to sale does not create any right or interest
Page 3 of 37

 Priority of rights must be protected


 Essential ingredients of sale

 Purchaser is to prove the title of predecessor also


 Unregistered and insufficiently stamped sale deed or agreement

 Unregistered but sufficiently stamped sale deed or agreement


 Collateral transactions

 Relinquishment must be by registered instrument

26. Defect of necessary party

27. Whether all case laws are to be cited in judgment

28. Evaluation of report of local commissioner

29. Proof of will


 Initial burden of proof
 Execution of will

 Explanation of suspicious circumstances


 Active participation by legatee

 Admission of will
 Where testator is illiterate, burden is heavy

30. Presumption of entries in land records


 Presumption

 Nature of presumption
 Revenue entries are not proof of title

 Entries made without order of competent authority – no


presumption
 Order set aside in appeal – no presumption

 Longer period of entries raise stronger presumption


Page 4 of 37

31. Competency of civil court to nullify the orders of revenue courts

32. Principles of calculation of mesne profits

33. Even void orders are binding

34. Question of limitation – duty of court


35. Documents have primacy over oral evidence

III. Conclusion
Page 5 of 37

I. INTRODUCTION
All judicial proceedings have their logical conclusion through judgments. A
judgment contains reasons for the decision, it deals with the arguments advanced at Bar, it
explains the winning party why he won and losing party why he lost and it informs the
legal community what the case was and why it is so decided.
Reasons are the soul of judgment. These reasons when based on sound judicial
principles of appreciation of evidence; both statutory and based on precedents justify the
conclusion and make the conclusion perverse and surmiseful vice versa. There are various
statutory provisions which contain principles of appreciation of evidence. At the same
time, different principles have developed by precedents.
This article is an attempt to compile the important principles of appreciation of
evidence in civil cases. I reserve a caveat that no such compilation can be exhaustive in
nature, I have just tried to bring on paper some most important principles.

II. IMPORTANT PRINCIPLES


1. STANDARD AND BURDEN OF PROOF IN CIVIL CASES
Standard of proof
Black’s Law Dictionary defines ‘standard of proof’ as the degree or level of proof
demanded in a specific case such as beyond reasonable doubt or preponderance of proba-
bility. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, (2003) 8 SCC
752, it is held that civil cases may be proved by preponderance of probability, due regard
being had to the burden of proof.
But what is preponderance of probability? Black’s Law Dictionary defines it in fol-
lowing terms:-
“Preponderance of evidence is the greater weight of evidence, not neces-
sarily established by the greater number of witnesses testifying to a fact
but by evidence that has the most convincing force; superior evidentiary
weight that, though not sufficient to free the mind from all reasonable
doubt, is still sufficient to incline a fair and impartial mind to one side of
the issue rather than the others.”
In simple words, it is such degree of probability as would satisfy the mind of a rea -
sonable prudent person as to the existence of a fact.
Page 6 of 37

Burden of proof
The law regarding burden of proof deals with the question by which party and in
what manner any fact is to proved. Sections 101 to 106 of the Evidence Act lay down rules
relating to burden of proof. The rules are as follows –
(1) Whoever desires any court to render judgment as to any legal right or liabil-
ity dependent on the existence of facts which he asserts must prove that hose
facts exist.
(2) When a person seeks to prove the existence of any facts, it is said that the
burden of proof lies on that person who would fail if no evidence at all were
given on either side.
(3) The burden of proof as to any particular fact lies on that person who wishes
the court to believe in its existence, unless it is provided by any law that the
proof of that fact shall lie on a particular person.
(4) The burden of proving any fact necessary to be proved in order to enable
any person to give evidence of any other fact is on the person who wishes to
give such evidence.
(5) When any fact is especially within the knowledge of any person, the burden
of proving that fact is upon him.
Burden of proof has two district meanings – The burden of establishing a case
which never shifts and the onus of proof i.e., burden of leading evidence which shifts con-
stantly as evidence is led by either party.
In A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136, the apex Court has
held that there is an essential distinction between burden of proof and onus of proof; bur-
den of proof lies upon the person who has to prove a fact and it never shifts, but the onus
of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evi-
dence.
Nevertheless, at the same time, it is also well settled as to when both the parties
lead evidence in civil cases, the question of burden of proof looses importance. The same
view has been enunciated by High Court of Madhya Pradesh in Chief Municipal Officer
Vidisha v. Champalal & another, 2007 RN 271 (HC) while relying upon the ratio of the
apex Court in Lakhan Sao v. Dharamu Chaudhary (1991) 3 SCC 331.
A party cannot take advantage of weakness in case of opposite party
Indubitably, plaintiff has to stand his case on his own legs rather than to rely upon
the shortcomings of defendant. In Daulat Singh v Devi Singh, 2011 (2) MPLJ 328, it is
held that plaintiff is required to prove his case on the basis of his own pleadings and he
Page 7 of 37

cannot take any advantage of weakness of defendant. In Ratnagiri Nagar Parishad v.


Gangaram Narayan Ambekar and ors., (2020) 7 SCC 275, it has been laid down that
weakness in defence cannot be the basis to grant relief to the plaintiffs and to shift the bur-
den on defendant.
2. NO EVIDENCE WITHOUT PLEADINGS
Fairness is the essence of judicial process. The core golden thread running through
the Code of Civil Procedure, 1908 ensures that no party is surprised by evidence of
adversary during trial. That is the objective of rules of pleadings and documents.
The High Court of Madhya Pradesh in Chandrabhan Singh v. Ganpat Singh,
ILR (2012) MP 1917 has considered this aspect and held that the object and purpose of
the pleadings is to enable the adversary to know the case of the other party. In order to
have a fair trial, it is imperative that party should state the essential material facts, so that
other party cannot be taken by surprise.
It is settled law that evidence howsoever cogent but contrary to pleadings cannot be
relied on. (See Janak Dulari Devi & Another v. Kapildeo Rai & Another, (2011) 6 SCC
555) In Nandkishore Lalbhai Mehta v. New Era Fabrics Private Limited and others,
(2015) 9 SCC 755 it is held that fresh evidence which is in variation to the original
pleadings cannot be taken unless the pleadings are incorporated by way of amendment. In
a more recent judgment of Biraji @ Brijraji and anr. v. Surya Pratap and ors., (2020)
10 SCC 729 (Three Judge Bench), application to summon records was filed after
conclusion of evidence when case was fixed for final arguments. There were no pleadings
on the issue on which evidence was sought. Apex Court held that in absence of pleading,
no amount of evidence will help the party and thus, such an application is not
maintainable.
However, there may be cases where though specific plea on an issue is not taken
but parties may lead evidence about it knowing that in substance the said plea is being
tried, in such cases formal requirement of pleadings can be relaxed. In this regard, the law
laid down by the Full Bench of apex Court in Bhagwati Prasad v. Chandramaul, AIR
1966 SC 735, is relevant to refer here-
"But cases may occur in which though a particular plea is not specifically
included in the issues, parties might know that in substance the said plea is
being tried and might lead evidence about it. It is only in such a case where the
Court is satisfied that the ground on which reliance is placed by one or the
other of the parties, was in substance, at issue between them and that both of
them have had opportunity to lead evidence about it at the trial that the formal
requirement of pleadings can be relaxed..."
Page 8 of 37

For example, in a partition suit specific share of sister may not be pleaded, the
Court is absolutely empowered to reckon her share in the property of deceased. She keeps
her right of share in deceased's property in the eyes of Hindu Succession Act, 1956, and
she would not be ousted from her share unless she waives her right of share in consonance
with law.
3. ADMISSION IS THE BEST EVIDENCE
An admission is a statement against the interests of the maker and prejudicial to
him. Admission may be either in pleadings or in evidence, oral or documentary. Evidential
admissions may also contain in previous statements and writings. It is a cardinal rule that
adjudication in a civil dispute that when admission emanates from the mouth of opposite
party, it would be treated as a best evidence.
Regarding nature of admissions, High Court of Madhya Pradesh rendered in
Awadh Bihari Asati & ors. v. Shyam Bihari Asati & ors., 2004 (1) MPLJ 225, has held
that it is well settled that admission made by the opposite party is the best evidence on
which other party can rely upon. Supreme Court in Ahmedsaheb v. Sayed Ismail AIR
2012 SC 3320, has also observed that it is needless to emphasize that admission of a party
in the proceedings either in the pleadings or oral is the best evidence and the same does
not need any further corroboration.
Admission through pleading is regarded on higher footing than evidentiary
admissions and is accepted as unimpeachable and infallible. The observation of our High
Court in Ramsajivan v. Laljiram 2012 RN 346, would be condign to refer here -
“According to me, the admissions in pleadings or judicial admissions
admissible under Section 58 of the Evidence Act made by the parties or their
agents at or before the hearing of the case, stand on a higher footing than
evidentiary admissions. The former class of admissions are fully binding on the
party that makes them and constitute a waiver of proof. They by themselves,
can be made the foundation of the rights of the parties..."
The evidentiary value of admissions was highlighted in the apex Court judgment of
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., AIR
1960 SC 100, wherein it was held that an admission is the best evidence that an opposing
party can rely upon, and though not conclusive, is decisive of the matter, unless
successfully withdrawn or proved erroneous. In relation to documents, our High Court in
Ramdevi Bai v. Kanak Singh, ILR 2014 MP 184 has held that it is equally well settled
legal proposition that an admission of a document is an admission of a facts contained in
the document.
However, plea of admission by vendor cannot be taken to defeat the interests of
Page 9 of 37

purchaser. Any admission made after parting with the interest in property is not
admissible. In Nanku @ Nagendra Singh v. Ramdaras Singh 2000 (II) MPWN 215, it
was held that no admission could be made after parting with the interest, it could be
relevant if made during subsistence of the interest, no admission is admissible in
derogation to the right of purchaser if made after selling property to him as per section 18
of the Evidence Act.
4. EVIDENTIARY VALUE OF REGISTERED DOCUMENTS
Registration of document is an official act. It has the backing of presumption u/s
114 of the Evidence Act. In Prem Singh v. Birbal, 2006 5 SCC 353, it has been held by
the Supreme Court that there is a presumption that registered document is validly
executed. A registered document therefore prima facie would be valid in law.
In Shanti Budhiya Vesta Patel v. Nirmala Jayprakash Tiwari AIR 2010 SC
2132, the apex Court has held that we cannot lose sight of the fact that a registered
document has a lot of sanctity attached to it and this sanctity cannot be allowed to be lost
without following the proper procedure. Similarly, in Rajendra Prasad Dwivedi v. Atul
Kumar Dwivedi and others 2005 (5) MPHT 383, our High Court has held that as per
section 114 of the Evidence Act, there is presumption that judicial and official acts have
been regularly performed and therefore, if the sale deed is registered by a sub-registrar
under Indian Registration Act in his official capacity it would deem that it is duly executed
unless and until it is refuted by some cogent evidence.
However, registration of Will does not absolve the propounder to prove the
execution thereof.
5. A PARTY CANNOT APPROBATE OR REPROBATE AT THE SAME
TIME
It is also one of the fundamental principles of appreciation of evidence that a party
cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate"
at the same time. In this regard, the ratio rendered in R.N. Gosain v. Yashpal Dhir, AIR
1993 SC 352, is relevant to refer as under –
"Law does not permit a person to both approbate and reprobate. This principle
is based on the doctrine of election which postulates that no party can accept
and reject the same instrument and that a person cannot say at one time that a
transaction is valid and thereby obtain some advantage to which he could only
be entitled on the footing that it is valid, and then turn round and say it is void
for the purpose of securing some other advantage."
In Cauvery Coffee Traders, Mangalore v. Hornor Resources (International)
Company Limited (2011) 10 SCC 420, it was held that where one knowingly accepts the
Page 10 of 37

benefits of a contract or conveyance or an order, he is estopped to deny the validity or


binding effect on him of such contract or conveyance or order. This rule is applied to do
equity. The rule is further elaborated in B. Bhagwat Sharan (Dead thr. LRs.) v.
Purushottam & ors., 2020 (6) SCC 387 by holding that in respect of Wills, this doctrine
has been held to mean that a person who takes benefit of a portion of the Will cannot
challenge the remaining portion of the Will. Any party which takes advantage of any
instrument must accept all that is mentioned in the said document.
6. DOCTRINE OF ESTOPPEL
Doctine of estoppel is based on concept of fair play and secures justice between the
parties by promotion of honesty and good faith. It is contained u/s 116-117 of the Evidence
Act. The doctrine of estoppel deals with questions of fact and not of rights. A person
having a certain right cannot be estoppel from claiming that right merely because earlier
he has stated that he will not claim that right.
In Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai , (1982) 1 SCC
223, the apex Court laid down essential ingredients for applicability of this principle in
following terms –
“To bring the case within the scope of estoppel as defined in sec. 115 of the
Evidence Act :
(1) there must be a representation by a person or his authorised agent to another
in any form-a declaration, act or omission;
(2) the representation must have been of the existence of a fact and not of
promises de future or intention which might or might not be enforceable in
contract;
(3) the representation must have been meant to be relied upon;
(4) there must have been belief on the part of the other party in its truth;
(5) there must have been action on the faith of that declaration, act or omission,
that is to say, the declaration, act or omission must have actually caused another
to act on the faith of it, and to alter his former position to his prejudice or
detriment;
(6) the misrepresentation or conduct or omission must have been the proximate
cause of leading the other party to act to his prejudice;
(7) the person claiming the benefit of an estoppel must show that he was not
aware of the true state of things. If he was aware of the real state of affairs or
had means of knowledge, there can be no estoppel.
Page 11 of 37

(8) Only the person to whom representation was made or for whom it was
designed can avail himself of it. A person is entitled to plead estoppel in his
own individual character and not as a representative of his assignee.”
It was also held in this case that there can be no estoppel against an statute.
In Kale & ors. v. Dy. Director of Consolidation, AIR 1976 SC 807, a
compulsorily registrable family arrangement though not registered was held to operate as
estoppel by preventing the parties after having taken advantage under the arrangement to
resile from the same or try to revoke it.
7. PROOF OF DOCUMENTS
The law relating to proof of document is contained u/s 67 to 100 of the Evidence
Act. Admission of document by Court is one thing and proof thereof is another. A
document after its admission by Court is required to be proved by the party who wish to
rely upon it. However, there are some provisions such as section 79 and 90 of the
Evidence Act which raise presumption of genuineness in favour of certified copy of public
documents or documents 30 years old.
General rule is laid down by apex Court in Sait Tarajee Khimchand v. Yelamarti
Satyam AIR 1971 SC 1865, where it was held that mere marking of a document as an
exhibit does not dispense with its proof.
Execution of document – how proved?
The landmark judgment of High Court of Madhya Pradesh in Gwalior Ceramic
and Potteries Pvt. Ltd. v. Karamchand Thapar and Bros. Coal Sales Ltd., 1996
MPLJ 772 may be referred where law relating to proof of documents was discused in
detail. The principles laid down therein may be summarised in fiollowing points –
(1) A reading of section 47 and 67 together shows that reasonable inference is
that the signature of the executer must be proved either by examining the
person in whose presence the signature was affixed or writing executed or
examining another person who is acquainted with the hand writing.
(2) Of course, a document or signature can also be proved by calling a hand
writing expert but unless the requirement of law is fulfilled, a document can
not be said to have been proved.
(3) If document is alleged to have been executed or signed a particular person, it
must be proved by witness who has either seen it being executed or who is
within the meaning of the explanation appended to section 47.
(4) If a person merely says that a particular document or a particular signature is
of particular person, it is not the compliance of law and cannot be said to be
Page 12 of 37

proper evidence of the fact required to be proved under section 47 of the


Indian Evidence Act. Thus, unless the requirement of the law is fulfilled, the
mere statement that the document is in the hand writing of a particular
person is not sufficient proof under the law.
(5) If document is exhibited it by itself does not go to show that the requirement
of law has been dispensed with.
Proof of documents more than 30 years old
Section 90 of the Evidence Act raises presumption in favour of documents which
are more than 30 years old. It is founded on necessity and convenience because it is
extremely difficult and sometimes not possible to lead evidence to prove handwriting,
signature or execution of old documents after lapse of thirty years.
Section 90 dispenses with proof of document as required in sections 67 and 68 and
what is required to be done is deemed to have been done by operation of law. In Om
Prakash v. Shanti Devi, AIR 2015 SC 976 it has been held that once it is satisfactorily
proved that the document is thirty years or more in age, section 90 thereupon dispenses
with the formalities of producing the executant and and or the attestators thereto.
However, presumption of genuineness may be raised only if the document in
question is produced from proper custody. The extent of the presumption relates only to
the signature, execution or attestation of a document that is to say, its genuineness. In
Chhogamal v. Mangilal, 1988 (I) MPWN 238 Madhya Pradesh High Court considered
the extent of presumption u/s 90 and held that four presumptions arise in respect of such
doument, namely —
(1) That the signature and every other part of the document, which purports to
be in the handwriting of any particular person, is in that person’s handwriting;
(2) That the document was executed by the person by whom it purports to have
been executed;
(3) That document was attested by person by whom it purports to have been
attested; and
(4) That the document was prepared at the time when it purports to have been
prepared.
It is the discretion of the Court to accept the presumption flowing from section 90.
In Lakhi Baruah v. Padma Kanta Kalita, AIR 1980 SC 1252 it has been held that
judicial discretion u/s 90 should not be exercised arbitrarily. In Ghasitibai v. Ramgopal
Singh, 2009 (1) MPLJ 666, it is held that the drawing of the presumption does not
connote the idea that the contents of the documents are true or that they have been acted
Page 13 of 37

upon. Presumption is restricted to the genuineness of document, not as to the truthness of


its contents.
In Bharpur Singh and ors. v. Shamsher Singh, (2009) 3 SCC 687 Apex Court
has laid down that presumption regarding 30 years old documents not applicable to Will. A
Will must be proved in terms of section 63 (c) of Indian Succession Act and section 68 of
Evidence Act.
Effect of proof of execution of document
The effect of proof of execution of document was considered by the apex Court in
Grasim Industries Ltd. v. Agarwal Steel, ILR 2009 MP 3252 (SC). It is held that when
a person signs a document, there is a presumption, unless there is a proof of force or fraud,
that he read the document properly and understood it and only then he has affixed his
signatures thereon, otherwise no signature on a document can ever be accepted. This
aspect has been further clarified in Madan Mohan Singh v. Ved Prakash Arya, (2021) 5
SCC 456 by holding that when the parties sign a document, they cannot wish away the
consequences which flow from the signing of document.
Admissibility of document is one thing and its probative value another
In State of Bihar v. Radha Krishna Singh and others, AIR 1983 SC 684, apex
Court has hekd that admissibility of a document is one thing and its probative value quite
another – these two aspects cannot be combined. A document may be admissible and yet
may not carry any conviction and weight or its probative value may be nil. In Dhaniram
v. Karan Singh 1985 MPWN 540, it is held that where executant of a document is
illiterate or rustic, the opposite party has burden to prove that the document was read over
and properly explained to him.
Similarly, in Narendra Kante v. Anuradha Kante AIR 2010 SC (Supp) 278 it is
held that deed of family settlement seeking to partition joint family property cannot be
relied upon unless signed by all the co-sharers.
Objection as to admissibility of document
Objection as to admissibility of a document must be raised at the time of recording
of evidence. Object o this provision is to afford an opportunity to the party to rectify the
defect and and resort to such mode of proof as would be regular. A party cannot be
permitted to surprise the adversary at the fag end of trial. In P.C. Purushothama v. S.
Perumal AIR 1972 SC 608, apex Court has held that it is not open to a party to object to
the admissibility of documents which were marked as exhibits without any objection from
such party.
It is also apposite to refer to the celebrated judgment of the apex Court in R.V.E.
Venkatachala Gounder (supra) where it was held that –
Page 14 of 37

"Ordinarily, an objection to the admissibility of evidence should be taken when


it is tendered and not subsequently. The objections as to admissibility of
documents in evidence may be classified into two classes (i) an objection that
the document which is sought to be proved is itself inadmissible in evidence;
and (ii) where the objection does not dispute the admissibility of the document
in evidence but is directed towards the mode of proof alleging the same to be
irregular or insufficient. In the first case, merely because a document has been
marked as "an exhibit," an objection as to its admissibility is not excluded and
is available to be raised even at a later stage or even in appeal or revision. In the
latter case, the objection should be taken when the evidence is tendered and
once the document has been admitted in evidence and marked as an exhibit, the
objection that it should not have been admitted in evidence or that the mode
adopted for proving the document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as an exhibit. The latter
proposition is a rule of fair play.
The crucial test is whether an objection, if taken at the appropriate point of
time, would have enabled the party tendering the evidence to cure the defect
and resort to such mode of proof as would be regular. The omission to object
becomes fatal because by his failure the party entitled to object allows the party
tendering the evidence to act on an assumption that the opposite party is not
serious about the mode of proof."
In Ranvir Singh v. Union of India, AIR 2005 SC 3467, the xerox copy of the sale
deeds were marked exhibits without any objection having been taken. It was held that such
an objection cannot, therefore, be taken for the first time before the appellate Court. The
said deeds of sale cannot be rejected only on the ground that only xerox copies thereof had
been brought on records.
Output of electronic records and requirement of certificate u/s 65B Evidence Act
Relying upon the judgment of the apex Court in R.V.E. Venkatachala Gounder
(supra), apex Court in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441 has held
that requirement of certificate as contemplated u/s 65B of the Evidence Act is also a
requirement of mode or method of proof and has to be raised at the time of marking of the
document as an exhibit and not later, particularly at the appellate stage.
8. ADVERSE INFERENCE AND BEST EVIDENCE RULE
One of the cardinal principle of law of evidence is that party in possession of best
evidence must produce it, otherwise as per section 114 (g) of Evidence Act adverse
inference may be drawn against him. Nature of presumption u/s 114 (g) of Evidence Act is
Page 15 of 37

discretionary. The Court may or may not raise such a presumption.


In Gopal Krishnaji v. Mohd. Haji Latif AIR 1968 SC 1413, the apex Court held
that where a party had not produced the best evidence, which could have thrown fight on
the issue in controversy, the Court ought to draw an adverse inference against him
notwithstanding that onus of proof does not lie on him. The party cannot rely on obstruct
doctrine of onus of proof or on the fact that he was not called upon to produce it.
Non-examination of a party lead to adverse inference
In Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat AIR 1970 MP
225, it was held that when a material fact is within the knowledge of a party and he does
not go into the witness box without any plausible reason, an adverse inference must be
drawn against him. A presumption must be drawn against a party who having knowledge
of the fact in dispute does not go into the witness box particularly when a prima facie case
has been made out against him. In Jagdish Prasad & ors. v. Smt. Meera Devi & ors.,
ILR (2011) MP 1259, it was held that the question of drawing an adverse inference on
account of non-examination of a party has to be decided in the facts of each case. U/s 114
of the Evidence Act, presumption which may be raised, is discretionary. The Court may or
may not raise such a presumption.
In International Electricals and another v. Smt. Sunital Jain, 2008 (2) MPLJ
118 proprietor of defendant neither entered in the witness box nor any explanation in this
regard was put forth on record, whereas in order to prove the alleged defence of the
tenancy he was the only witness who could have proved such fact. Therefore, non-
examination of the defendant was held to be material circumstance to draw the inference
against him that there was no such relationship of landlord and tenant. In Vimal Chand
Ghevarchand Jain and others v. Ramakant Eknath Jadoo, (2009) 5 SCC 713, the
defendant (son of the vendor) was the attesting witness of the sale deed. In his written
statement, he categorically denied execution of the said deed of sale. He also denied that
he had attested the document. He even did not examine himself before the trial Court. It
was held that adverse inference, thus, should have been drawn against him.
In Iqbal Basith and ors. v. N. Subbalakshmi and ors., (2021) 2 SCC 718 (Three
Judge Bench), the defendents raised no genuine objection to the validity or genuineness
of the government documents and the registered sale deeds produced by the appellants in
support of their lawful possession of the suit property. Defendant 1 did not appear in
person to depose, and be cross-examined. His younger brother deposed on the basis of a
power of attorney, acknowledging that the latter had separated from his elder brother. No
explanation was furnished why the original defendant did not appear in person to depose.
Held, there is no reason not to draw an adverse inference against defendant 1 in the
circumstances.
Page 16 of 37

However, the above rule admits an exception in form of power of attorney holder
having full knowledge of facts. In Jagdish Prasad (supra), plaintiff had not entered the
witness box and her son was examined on her behalf as her attorney. The power of
attorney was given to conduct the suit and to do all other acts which were necessary.
Plaintiffs' son deposed that he had the information about the case which was not rebutted
in cross-examination. It was held that an attorney can appear as a witness as well and no
adverse inference can be drawn on account of non-production of the plaintiff.
Husband is competent witness for wife
Section 120 of the Evidence Act provides that –
“120. Parties to civil suit, and their wives or husbands – In all civil
proceedings the parties to the suit, and the husband or wife of any party to the
suit, shall be competent witnesses.”
In Smt. Rajni Tiwari v. Smt. Bhagwati Bai 2012 (2) MPHT 203 it has been held
that u/s 120 of the Evidence Act, the husband of a party to the suit is competent witness,
therefore, he is entitled to depose about the facts about which he or his wife has the
knowledge. The husband of the petitioner being the competent witness for the wife can
also be permitted to exhibit the document and there is no need to execute the power of
attorney.
In cases where husband holding special power of attorney of wife comes to depose
on her behalf, reference amy be made to Murlidhar Pinjani & anr. v Smt. Sheela
Tandon & anr., ILR (2007) MP 785 where it has been held that husband is competent to
depose for his wife as provided u/s 120, thus, no adverse inference can be drawn due to
non-examination of plaintiff/wife.
Non-production of document lead to adverse inference
In Manisha Lalwani (Smt.) v. Dr. D.V. Paul, ILR (2012) M.P. Short Note 60 it
was held that non-production of document when called upon by Court to produce would
lead the Court to draw an adverse inference.
9. COMPETENCY OF POWER OF ATTORNEY HOLDER
Civil litigation often involves question of competency of power attoney holders to
depose on behalf of principal. General principle is that a power of attorney holder cannot
depose in place and instead of principal. However, he can always appear as a witness for
the principal.
The extent of competenacy of power of attorney holder cme up for consideration
before the apex Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., AIR 2005 SC
439. It was held that Order, 3 Rules 1 and 2 CPC empowers the holder of power of
Page 17 of 37

attorney to 'act' on behalf of the principal. The term 'act' would not include deposing in
place and instead of the principal. However, If the power of attorney holder has rendered
some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of
such acts, but he cannot depose for the principal for the acts done by the principal and not
by him. Similarly, he cannot depose for the principal in respect of the matter which only
the principal can have a personal knowledge and in respect of which the principal is
entitled to be cross-examined.
In Man Kaur (DEAD) By Lrs V/S Hartar Singh Sangha, 2010 (10) SCC 512 the
apex Court has summarised the position as to the competency of power of attorney to give
evidence –
(a) An attorney holder who has signed the plaint and instituted the suit, but has
no personal knowledge of the transaction can only give formal evidence about
the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in
pursuance of the power of attorney granted by the principal, he may be
examined as a witness to prove those acts or transactions. If the attorney holder
alone has personal knowledge of such acts and transactions and not the
principal, the attorney holder shall be examined, if those acts and transactions
have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal
for the acts done by the principal or transactions or dealings of the principal, of
which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with
or participated in the transaction and has no personal knowledge of the
transaction, and where the entire transaction has been handled by an attorney
holder, necessarily the attorney holder alone can give evidence in regard to the
transaction. This frequently happens in case of principals carrying on business
through authorized managers/attorney holders or persons residing abroad
managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular
attorney holder, the principal has to examine that attorney holder to prove the
transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages
of the transaction, if evidence has to be led as to what transpired at those
different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a
Page 18 of 37

proceeding, to establish or prove something with reference to his 'state of mind'


or 'conduct', normally the person concerned alone has to give evidence and not
an attorney holder.
Example : A landlord who seeks eviction of his tenant, on the ground of his 'bona fide'
need and a purchaser seeking specific performance who has to show his 'readiness and
willingness' fall under this category.
There is however a recognized exception to this requirement. Where all the affairs
of a party are completely managed, transacted and looked after by an attorney (who may
happen to be a close family member), it may be possible to accept the evidence of such
attorney even with reference to bona fides or 'readiness and willingness'. Examples of such
attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a
son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother
exclusively managing the affairs of a son/daughter living abroad.
10. JOINT HINDU FAMILY AND JOINT PROPERTY
Presumption of joint Hindu family
There is a presumption of jointness of Hindu family. In State Bank of Travancore
v. A.K. Panicker AIR 1971 SC 996, it was held that a Hindu family is presumed to be
joint unless the contrary is established. However, there is no presumption of such joint
family holding joint property. In Appasaheb Peerappa Chandgade v. Devendra
Peerappa Chandgade AIR 2007 SC 218, it was held that –
“So far the legal proposition is concerned, there is no gainsaying that whenever
a suit for partition and determination of share and possession thereof is filed,
then the initial burden is on the plaintiff to show that the entire property was a
joint Hindu family property and after initial discharge of the burden, it shifts on
the defendants to show that the property claimed by them was not purchased
out of the joint family nucleus and it was purchased independent of them. This
settled proposition emerges from various decisions of this Court right from
1954 onwards.
A three Judge Bench judgment of the Supreme Court in Achuthan Nair v.
Chinnammu Amma & Ors AIR 1966 SC 411, is also worth to refer here where it was
observed that under Hindu law , when a property stands in the name of a member of a joint
family, it is incumbent upon those asserting that it is a joint property to establish it.
Property purchased from the funds of HUF is deemed to be of HUF
In Gopi Nath v. Shivprasad 2012 RN 323, our High Court has held that according
to Article 231(1) of the Mulla's Hindu Law there is a presumption of Joint Hindu Family,
Page 19 of 37

but, according to sub-para (2) of the said Article there cannot be any presumption that joint
family possess a joint property and it is for the person who claims it to be joint has to
prove that from the funds of HUF it was purchased. If it is proved that it was purchased
from the funds of HUF irrespective of the fact it was purchased in the name of only one
member, it would be deemed that the same is the HUF property.
No adverse possession against co-sharers
In Darshan Singh v. Gujjar Singh, 2002 LawSuit (SC) 10, the apex Cpourt held
that the correct legal position is that possession of a property belonging to several co-
sharers by one co-sharer shall be deemed that he possess the property on behalf of the
other co-sharers unless there has been a clear ouster by denying the title of other co-
sharers.
Purchasers' right in undivided and joint property
The crux of law laid down in Baital Singh v. Shrilal 2007 (4) MPLJ 477, Ramdas
v. Sitabai 2009 (4) MPLJ 597 (SC) and Govind Singh v. Hamir Singh 2013 (III)
MPWN 57 is that the purchaser of a co-parcener's undivided interest in the joint family
property is not entitled to possession of what he had purchased. His only right is to sue for
partition of the property and ask for allotment to him of that which, on partition, might be
found to fall to the share of the coparcener whose share he had purchased. Undivided share
of co-sharer may be a subject-matter of sale, but possession cannot be handed over to the
vendee unless the property is partitioned by metes and bounds amicably and through
mutual settlement or by a decree of the Court.
11. DOCUMENT BROUGHT IN LIGHT AFTER UNDUE DELAY
A document which is not shown light after its execution for long time raises
suspicion on its genuineness. A person gaining from a document would naturally show
such document to affected persons and would use it to further his interest. Keeping silent
about it is against the common course of human conduct.
In Punjraj v. Hemsingh 1994 RN 168, it was held that section 109 of the MP Land
Revenue Code provides that if a person lawfully requires a right or interest in the land he
shall report orally or in writing his acquisition of such right to the Patwari within six
months from the date of such acquisition. In absence of any endorsement by the Patwari or
any of the Revenue Officers it can very well be assumed that it was never produced before
the authorities who are required to deal with recording of the possession of the agricultural
land. A document which is not brought in light for a considerable period to time
creates serious doubt over its truthfulness and verasity.
This principle has been further enunciated in Ramrao son of Karujibaghale v.
Natthu son of Karujibaghale & ors. AIR 2011 MP 195, by our High Court considering
Page 20 of 37

on similar issue has held as under:


"The second suspicious circumstance is that although the plaintiff was having
Will in his possession and the said Will has been executed on 3.2.1984 and
testator Karuji died on 24.11.1985, but, the plaintiff was keeping silent and did
not act upon on the basis of Will for years together which is against his natural
conduct.”
12. NOTICE RECEIVED AND NOT REPLIED
There is a presumption in favour of person issuing notice that the noticee has
nothing in defence where even after due receipt of notice, no reply is given to the sender
thereof. Such an inference may be drawn on the basis of common course of human
conduct.
In Mool Chand v. S.P. Kapoor, 2010 (4) MPLJ 543, our High Court has held that
it is settled position of law that whenever a notice is given by a party to the other party and
in spite of service of the same if it is not replied by the other party then, such a
circumstance is sufficient to draw inference against such other party that he did not have
any proper defence to challenge or rebut the case of the party who issued such notice.
Ramesh v. Smt. Mansi, 2008 (I) MPJR SN 4 may also be referred on this point.
13. WITNESS NOT APPEARING FOR CROSS-EXAMINATION
It often happens in civil cases that after filing examination-in-chief on affidavit, the
deponent do not appear for cross-examination. What will be the value of such affidavit,
was the question considered by apex Court in A.T. Corpn. Ltd. v. Shapoorji Data
Processing Ltd. AIR 2004 SC 355 (Three Judge Bench) where it was held that
examination-in-chief of a witness can be produced in the form of affidavit, yet, same can
not be ordered to form part of evidence unless the deponent thereof enters the witness box
and confirms that the contents thereof are as per his say and the affidavit is under his
signature and his statement being made on oath.
Therefore, unless the deponent appears in the witness box, proves the affidavit to be
his examination and chief and renders himself available for cross examination, his
affidavit cannot be read in evidence.
14. AFFIDAVITS ARE NOT EVIDENCE
In many cases parties file previous affidavit of persons to prove the statements in
their favour. The term 'evidence' defines u/s 3 of the Evidence Act specifically excludes
'affidavit' and therefore, affidavits are not evidence. However, affidavits may be relevant
and may be proved as 'admission' against the deponent himself. In Kalusingh v. Nirmala,
2015 (3) MPHT 218, it is held that unless Court orders under Order XIX, Rule 1 CPC or
Page 21 of 37

unless the adversary is permitted to cross-examine the deponent on affidavit, affidavit


cannot be accepted as evidence.
15. ABSENCE OF CROSS EXAMINATION – EFFECT OF
Statement not challenged in cross examination is to be accepted as admitted. The
apex Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs.
& Ors., AIR 2013 SC 1204 has observed that there cannot be any dispute with respect to
the settled legal proposition, that if a party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said witness must be given an opportunity to
explain his statement by drawing his attention to that part of it, which has been objected to
by the other party, as being untrue. Without this, it is not possible to impeach his
credibility. If a party intends to impeach a witness, he must provide adequate opportunity
to the witness in the witness box, to give a full and proper explanation. The same is
essential to ensure fair play and fairness in dealing with witnesses. Thereafter, the
unchallenged part of his evidence is to be relied upon, for the reason that it is impossible
for the witness to explain or elaborate upon any doubts as regards the same, in the absence
of questions put to him with respect to the circumstances which indicate that the version of
events provided by him, is not fit to be believed, and the witness himself, is unworthy of
credit.
In Anita Sharma and ors. v. New India Assurance Company Ltd. and anr.,
(2021) 1 SCC 171, apex Court has held that failure to cross-examine a witness despite
adequate opportunity leads to an inference of tacit admission.
In Mohammed Sayed & anr. v. M/s Hindustan Petroleum & ors, 2004 (I) JLJ
199, it has been reiterated that when a statement is not challenged in cross-examination, it
has to be accepted as admitted.
16. DESCRIPTION IN DEED IS NOT DECISIVE OF TRUE CHARACTER
Civil disputes often involves the question of interpretation of documents to
ascertain its true character. In such cases, title of the deed may not correspond to the
contents thereof. In such cases observation of the apex Court in Mangala Kunhamina v.
Puthiyaveettil Peru Amma AIR 1971 SC 1575 may come to the aid where it was
observed that Court is required to consider circumstances and conduct of the parties so as
certain the true character and conduct of the transaction evidenced by any document, the
mere discription of the deed held to be not decisive of the essence of the transaction.
17. IDENTITY OF PROPERTY – DISPUTE BETWEEN PLOT NUMBER
AND BOUNDARIES
Nagpur High Court in Pannalal v. Bhaiyyalal, AIR 1937 Nag 281 has observed
that substantial description of property such as boundaries must prevail over measurement
Page 22 of 37

in a deed of conveyance, as measurements in deeds are seldom accurate.


The apex Court in Sheodhyan Singh v. Sanichara Kuer, AIR 1963 SC 1879 has
held that where both the boundaries and the plot number are availble on record, boundaries
must prevail and the mistake in the plot number must be treated as a mere misdescription
which does not affect the identity of the property sold. The same has also been followed in
Raj Bai v. Uday Pratap Singh, 2014 (II) MPWN 78 (DB).
18. NOMINEE IS AGENT OF ACTUAL SUCCESSORS
In family disputes and matters relating to succession certificate, question arises as
to the status of nominee. On one hand several persons may claim the benefits on the basis
of law of succession applicable to the parties, and on the other hand widow may claim the
entire benefits on the basis of being nominee f the deceased.
So far as the rights of nominee are concerned, it is well settled that nominee is the
only an agent of actual successors. In this respect, the verdict rendered in Sarbati Devi v.
Usha Devi, AIR 1984 SC 346, is condign to quote here –
“12….We approve the views expressed by the other High Courts on the
meaning of Section 39 of the Act (LIC of India Act, 1956) and hold that a mere
nomination made under Section 39 of the Act does not have the effect of
conferring on the nominee any beneficial interest in the amount payable under
the life insurance policy on the death of the assured. The nomination only
indicates the hand which is authorised to receive the amount, on the payment of
which the insurer gets a valid discharge of its liability under the policy. The
amount, however, can be claimed by the heirs of the assured in accordance with
the law of succession governing them.”
19. PRESUMPTION OF CORRECTNESS OF ORDER SHEET OF COURT
Illustration (e) of section 114 of the Evidence Act raises a presumption that judicial
and official acts have been regularly persormed. Assertion of facts contrary to order sheet
is impermissible. Record of Court speaks for itself and terms of a judicial order reflect
what has been decided.
In a recent judgment of Committee of Creditors of Amtek Auto Ltd. through
Corporation Bank v. Dinkar T. Venkatasubramanian and ors., (2021) 4 SCC 457 the
apex Court dealt with an application for rectification of order. It has been held that the
application cannot be accepted as it is a settled principle of law that the record of the Court
speaks for itself and the terms of a judicial order reflect what has been decided.
20. EFFECT OF CORRECTION IN DEPOSITION SHEET
Sometimes, deposition sheets are corrected by either replacing the words “not true”
Page 23 of 37

with “it is true” or vice versa. When the presiding officer who had recorded the deposition
is transferred, such corrections become difficult to appreciate. Such was the situation
before apex Court in Guru Dutt Pathak v. State of Uttar Pradesh, AIR 2021 SC 2257
wherein it has been held that a truncated statement is not to be read and true import of such
correction is to be inferred from the contents of entire paragraph. In this case, suggestion
was given to eye-witness that he was not present in the village and reached there after
receiving the information. Correction in deposition sheet suggests that he admitted it to be
true. Apex Court rejected the contention that witness accepted that suggestion in the light
of contents of the entire paragraph.
21. DEPOSITION TO BE READ AS A WHOLE
Oral statement of witnesses are often challenged on the basis of isolated and
truncated admissions obtained by sagacious cross-examination. Such truncated admissions
have no significance as deposition of a witness is to be read as a whole, not in parts.
In Sunil Kumar Sambhudayal Gupta & ors. v. State of Maharashtra, (2010) 13
SCC 657 it has been held that the rules of appreciation of evidence require that court
should not draw conclusions by picking up an isolated sentence of a witness without
adverting to the statement as a whole.
22. EVIDENCE OF RUSTIC VILLAGERS
It is quite natural for them to be overawed by the Court atmosphere to give varying
statements. In Malikarjun and others v. State of Karnataka, (2019) 8 SCC 359 apex
Court has held that vidence of rustic villagers cannot be adjudged by the same standards
and exactitude like any other witness. Minor variations in their statements have to be
ignored.
23. POSSESSION IS PRIMA FACIE PROOF OF TITLE
The presumption of section 110 of the Evidence Act, is as under –
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.
On contemplation of the above provision, the apex Court in Nair Service Society v.
KC Alexander, AIR 1968 SC 1165 has observed that a person in possession of land in the
assumed character of owner and exercising peaceably the ordinary rights of ownership has
a perfectly good title against all the world but the rightful owner. And if the rightful owner
does not come forward and assert his title by the process of law within the period
prescribed by the provisions of the statute of Limitation applicable to the case, his right is
Page 24 of 37

for ever extinguished and the possessory owner acquires an absolute title.
In Chief Conservator of Forests v. Collector, AIR 2003 SC 1805, Supreme Court
enunciated that section 110 embodies the principle that possession of property furnishes
prima facie proof of ownership to the possessor and casts burden of proof on the party
who denies his ownership. A long and settled possession of party over disputed land shifts
the burden of proof on adversary to prove that their settled possession is without title.
However, recently in Nazir Mohamed v. J. Kamala and ors., 2021 (4) MPLJ 46
(SC), the apex Court has carved out a caveat to the above general rule. It has been held
that the maxim “possession follows title” is limited in its application to property, which
having regard to its nature, does not admit to actual and exclusive occupation, as in the
case of open spaces accessible to all. The presumption that possession must be deemed to
follow title, arises only where there is no definite proof of possession by anyone else.
Attributes of settled possession
Law protects the rights of persons in settled possession of property. But it is not
easy to distinguish between a trespasser and a person in settled possession as the
difference is subliminal. Celebrated judgment of the apex Court in Rame Gowda vs M.
Vardappa Naidu, AIR 2003 SC 4609 may be referred wherein tests to determine whether
a possession is settled possession or not. It has been laid down that –
“The court laid down the following tests which may be adopted as a working
rule for determining the attributes of ''settled possession'' :
(i) that the trespasser must be in actual physical possession of the property over
a sufficiently long period;
(ii) that the possession must be to the knowledge (either express or implied) of
the owner or without any attempt at concealment by the trespasser and which
contains an element of animus possidendi. The nature of possession of the
trespasser would, however, be a matter to be decided on the facts and
circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be
complete and final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in
the case of culturable land, would be whether or not the trespasser, after having
taken possession, had grown any crop. If the crop had been grown by the
trespasser, then even the true owner has no right to destroy the crop grown by
the trespasser and take forcible possession.”
Page 25 of 37

24. PERMISSIVE POSSESSION DOES NOT AUTOMATICALLY


BECOME ADVERSE
In a three Judge Bench judgment of Supreme Court in Sheodhari Rai v. Suraj
Prasad Singh, AIR 1954 SC 758 it was held that where the possession is proved to be in
its origin permissive, it will be presumed that it contained to be same character until and
unless something occurred to make it adverse. In another judgment of State of
Travancore v. A.K. Panicker, AIR 1971 SC 996 (three Judge Bench) it was held that a
permissive possession cannot be converted into an adverse possession unless it is proved
that the person in possession asserted an adverse title to the property to the knowledge of
true owners for a period of 12 years or more.
In a more recent judgment of Ramnagina Rai & anr. v. Dev Kumar Rai (dead)
by Lrs & anr. (2019) 13 SCC 1363, wherein apex Court observed that there is nothing on
record to show that the defendants' permissive possession over the property became
adverse to the interest of the real owner, at any point of time. On the contrary, the records
reveal that the permissive possession of the defendants continued till the filing of the suit.
Therefore, question of adverse possession do not arise.
That apart, for establishing the title on base of adverse possession the starting point
of hostile possession has to be proved as laid down in Swaroop Singh v. Bartu (2005) 8
SCC 330, where it was observed that in terms of Article 65 the starting point of limitation
does not commence from the date when the right of ownership arises to the plaintiff but
commences from the date the defendant's possession becomes adverse.
25. SALE DEED AND AGREEMENT TO SALE
In order to appreciate the evidentiary aspect of sale of immovable property, the
relevant definitions of Transfer of Property Act, 1882 are condign to refer –
5. Transfer of Property defined : In the following sections "transfer of
property" means an act by which a living person conveys property, in present or
in future, to one or more other living persons, or to himself or to himself and
one or more other living persons; and "to transfer property" is to perform such
act.
54. 'Sale' : "Sale" is a transfer of ownership in exchange for a price paid or
promised or part-paid and part-promised.
Sale how made. Such transfer, in the case of tangible immovable property of
the value of one hundred rupees and upwards, or in the case of a reversion or
other intangible thing, can be made only by a registered instrument.
Agreement to sale does not create any right or interest
Page 26 of 37

In Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & anr,, 2012 (1) SCC
656, it has been held that any contract of sale (agreement to sell) which is not a registered
deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and
55 of TP Act and will not confer any title nor transfer any interest in an immovable
property.
In Namdeo v. Collector, East Nimar, Khandwa, (1995) 5 SCC 598, it was held
that an agreement to sale does not create any right title or interest except a right to be
enforced in Courts.
Priority of rights must be protected
Several civil litigations involve dispute where same property is claimed by different
persons on the basis of disfferent sale deeds. Our High Court recognized the principle of
priority of rights in Sunil Kumar v. Dr. Om Prakash Garg & ors., ILR (2010) MP 960
(DB) has held that purchase made competently vide earlier registered sale deed is to be
first protected.
Essential ingredients of sale
In Kanaklatabai v. Parvatibai, 2009 (2) MPLJ 321, it has been held that essential
elements of sale are parties, subject matter, transfer or conveyance and price or
consideration. It was further held that price or consideration is essential for sale, but
payment of price is not necessarily a sine qua non to the completion of sale.
In Dayawantibai v. Sarala Bai, 2006 (4) MPLJ 346, it was held that sale is a
transfer of ownership in exchange for a price. Delivery of possession is also an essential
ingredient. Where both the ingredients are lacking and the possession remains with the
vendor, it cannot be said to be a sale of immovable property.
Purchaser is to prove the title of predecessor also
Where property is purchased by a person and his title is challenged in a suit, such
person is required to prove the title of vendor also. In Rashid Khan v. State of M.P., ILR
2011 MP 2801, our High Court has observed that –
“12. It is well settled law that if the title of the plaintiffs is challenged, he is not
only bound to prove his title but he had to further prove the title of his vendor
also. In this context, I may cite a decision of this Court Sabrani Vs. Muniya,
1967 RN 507. Since the plaintiffs have utterly failed to prove the title of their
predecessor, according to me, learned trial court did not err in dismissing the
suit of plaintiffs holding that they had failed to prove their title in the suit land.”
Unregistered and insufficiently stamped sale deed or agreement
The apex Court has considered the effect of unregistered and insufficiently stamped
Page 27 of 37

sale deed and agreement to sale in the light of provisions of Transfer of Property Act,
1882, Registration Act, 1908 and Stamp Act, 1899 in Avinash Kumar Chauhan v. Vijay
Krishna Mishra , 2009 (3) MPLJ 289 (SC). The upshot of the judgment may be
summarised in following points –
(1) An unregistered document may be admitted in evidence but a document
which is insufficiently stamped cannot be used even for collateral purpose.
(2) Section 33 Stamp Act casts a duty upon every person who has authority to
receive evidence and every person in charge of a public office before
whom the instrument is produced, if it appears to him that the same is not
duly stamped, to impound the same. Sub-section (2) of Section 33 of the
Act lays down the procedure for undertaking the process of impounding.
(3) Section 35 of the Stamp Act provides that an instrument shall be
inadmissible in evidence if the same is not duly stamped.
(4) The unregistered deed of sale is an instrument which required payment of
the stamp duty applicable to a deed of conveyance. If adequate stamp duty
is not paid, the court has to pass an order in terms of section 35 of the
Stamp Act.
(5) Such a document would be inadmissible even for collateral purposes.
Unregistered but sufficiently stamped sale deed or agreement
It may happen that requisite stamp is paid on the deed or agreement or after
impounding u/s 33 of the Stamp Act, deficit stamp and penalty is recovered thereon, but
requirement of registration cannot be fulfilled. In such cases, provisions of section 49 of
the Registration Act, 1908 is relevent which provides that –
49. Effect of non-registration of documents required to be registered.- No
document required by S.17 or by any provision of the Transfer of Property Act,
1882, to be registered shall –
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or
conferring such power,
unless it has been registered:
Provided that an unregistered document affecting immovable property and
required by this Act or the Transfer of Property Act, 1882, to be registered may
be received as evidence
Page 28 of 37

 of a contract in a suit for specific performance under Chapter II of the


Specific Relief Act, 1877 (now Specific Relief Act, 1963), or
 as evidence of any collateral transaction not required to be effected by
registered instrument.
In K.B. Saha and Sons Private Limited v. Development Consultant Limited,
AIR 2008 SC 850 the apex Court culled out the following principles:
(1) A document required to be registered, if unregistered is not admissible into
evidence under Section 49 of the Registration Act.
(2) Such unregistered document can however be used as an evidence of collateral
purpose as provided in the proviso to Section 49 of the Registration Act.
(3) A collateral transaction must be independent of, or divisible from, the
transaction to effect which the law required registration.
(4) A collateral transaction must be a transaction not itself required to be effected
by a registered document, that is, a transaction creating, etc. any right, title or
interest in immovable property of the value of one hundred rupees and
upwards.
(5) If a document is inadmissible in evidence for want of registration, none of its
terms can be admitted in evidence and that to use a document for the purpose
of proving an important clause would not be using it as a collateral purpose.
In S. Kaladevi v. V.R. Somasundaram and others, AIR 2010 SC 1654, the above
principles were approved with one more principle added that a document required to be
registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit
for specific performance.
Section 17 of the Registration Act, 1908 was amended in Madhya Pradesh by Act
No. 4 of 2010 (w.e.f. 14.01.2010) by which clause (f) was added to section 17(1) to the
following effect –
(f) any document which purports or operates to effect any contract for sale of
any immovable property;
Although, contract for sale of any immovable property has been made compulsorily
registrable but corresponding amendment as to its effect on non-registration has not been
made in section 49. Therefore, there is no effect of non-registration of contract for sale of
any immovable property and suit for specific performance on its basis is maintainable. Our
High Court in Akshay Doogad v. State of MP, AIR 2016 MP 83 has approved it.
In Prabhu Ramchandra v. Sulchi Nande, AIR 1963 MP 292 it was held that an
Page 29 of 37

unregistered sale deed can be received as evidence of contract in suit for specific
performance.
Collateral transactions
Black's Law Dictionary defines 'collateral' as supplementary; accompanying, but
secondary or subordinate. Collateral purpose is the purpose which is independent of the
purpose for which document was executed and is divisible from the transaction required
by law to be registered.
In K.B. Saha (supra), it was held that an unregistered document may be received as
collateral purpose of the delivery of possession or nature of possession.
Similarly, unregistered mortgage deed was held to be admissible in a suit for
recovery of money to prove advance of payment [2009 (1) MadLJ 961]. A new agreement
may prove that earlier agreement was repudiated [AIR 2008 All 169]. Date of entering
into possession [AIR 1963 All 603], fact of possession [2004 (3) PunLR 311] and
delivery of possession [AIR 1976 Gau 10] have been held to be collateral purposes.
However, terms of a document have been held to be not a collateral purpose in
Satish Chand Makhan v. Govardhan Das Byas, AIR 1984 SC 143. Thus, if a document
is inadmissible for want of registration, none of its terms may be proved in the garb of
collateral purpose.
Relinquishment must be by registered instrument
Relinquishment of any immovable property by a share holder results in transfer of
interest in favour of the beneficiary. It requires compulsory registration in light of clause
(b) of section 17(1) of the Registration Act, 1908. The same has been established in the
judgment of our High Court in Ghasitibai v. Ramgopal Singh, 2009 (1) MPLJ 666.
26. DEFECT OF NECESSARY PARTY
Defect of non-joinder of a necessary party is fatal to the suit as per Order 1, Rule 9
CPC. In Shivkalibai v. Meerabai, 1991 RN 262 it has been held that where a suit is
vitiated by non joinder of necessary party, it should be dismissed. However, such an order
can only be passed where the plaintiff suffers the non joinder even after objection of
defendant and does not make efforts to bring the necessary party on record even after
opportunity.
27. WHETHER ALL CASE LAWS ARE TO BE CITED IN JUDGMENT
There is a tendency of referring innumerable case laws in arguments by the
lawyers. Whether presiding officer of Court is required to cite all of them its judgment?
This question came up for consideration before a Division Bench of our High Court in
Kishore Kumar & anr. v. Mohd. Hussain & ors., ILR (2011) MP 1487 (DB). Holding
Page 30 of 37

that it is not mandatory for a judge to cite all of the case laws referred to, it has been
observed that no party or counsel is entitled to make a grievance that the judgments, which
are being cited, are not relied upon or mentioned unless the ratio laid down therein has any
relevance in the given case. The relevant para is condign to reproduce here –
“Next submission by the learned counsel for the petitioner, though with an
undertone but have an element of complaint that the judgments which are being
cited are not addressed at by the Court, we attach no significance to this
submission as it is not unusual for the parties, and counsel to cite innumerable
judgments without confining to the ratio attracted and applicable in the matter
where it is being cited. No party or counsel is, therefore, entitled to make a
grievance that the judgments which are being cited are not relied upon or
adverted; as unless the judgments which are being cited has any relevance and
if the ratio laid down therein is attracted in the case.”
Appropriate practice would be to refer all the case laws relevat to the argument
advanced by the parties and mention that other referred case laws have no significance in
the matter to support their arguments.
28. EVALUATION OF REPORT OF LOCAL COMMISSIONER
Commission for local investigation may be issued by Courts for elucidation of real
dispute between the parties, where there is boundary dispute between them, where
identification of property is in dispute or where there is no agreed map. In property
disputes, commission for local investigation are often issued. But how to appreciate the
report of Commissioner, how much reliance can be placed has always remained a grey
area for the Courts.
The law is well settled that Court is not bound by the report of Commissioner.
Court can accept or reject the report on the basis of other evidence and material on record.
Praga Tools Corporation Ltd. v. Mahboobunnissa Begum, (2001) 6 SCC 238, may be
referred where apex Court has held that the report of the Commissioner could only be an
aid to the trial Court in arriving at its findings.
In Bhuribai v. Phoolchand, 1977 (II) MPWN 236, it was held that where
objection is raised on Commissioners’ report, the report cannot be read in evidence unless
objection is decided. In Bherulal v. Shantabai, 1989 (II) MPWN 56, it was held that
Commissioners’ report being part of record of Court is not required to be proved by the
Commissioner himself.
As far the value of Commissioner report is concerned, Supreme Court in Rajinder
and Company v. Union of India, 2000 LawSuit (SC) 709, has held that the question
whether the commissioner's report is finally acceptable or not could be decided by the
Page 31 of 37

court dehors the order passed by the authority concerned. Reference may also be made to
the judgment of Privy Council in Chandan Mull v. Chaimanlal, AIR 1940 PC 3, in
which their Lordships have held –
"Interference with the result of a long and careful local investigation except
upon clearly defined and sufficient grounds is to be deprecated. It is not safe for
a Court to act as an expert and to overrule the elaborate report of a
Commissioner whose integrity and carefulness are unquestioned, whose careful
and laborious execution of his task was proved by his report, and who had not
blindly adopted the assertions of either party."
This judgment has been followed by our High Court in Mangilal v. Gaurishankar,
AIR 1992 MP 309.
So far as requirement of preparation of field book while conducting the proceedings
of demarcation is concerned, in Neema Bai v. Saraswati Bai & others, 2002 RN 416, our
High Court has approved that preparation of field book is not sine qua non for
demarcation report.
29. PROOF OF WILL
Initial burden of proof
The legal principles regarding burden of proof of Will are well settled that since
propounder of Will gets its benefits, he is under obligation to prove the Will beyond all
suspicions. In this context, the pronouncement of Hon'ble Apex Court in Benichand v.
Kamal Kunwar, AIR 1977 SC 63, is condign to quote here-
"It is well settled that onus probandi lies in every case upon the party
propounding a Will, and he must satisfy the conscience of the Court that the
instrument was propounded is the last Will of a free and capable testator".
The aforesaid settled preposition has been endorsed in catena of the cases including
the latest case of Dhanpat v. Shev Ram through LRs & ors., AIR 2020 SC 2666.
Execution of Will
The Supreme Court judgment rendered in Janki Narayan Bhoir v. Narayan
Namdeo Kadam, AIR 2003 SC 761 is the landmark for understanding the law of proof of
Will. The observation made in this judgment is worthy to mention here –
“On a combined reading of Section 63 of the Succession Act with Section 68 of
the Evidence Act, it appears that a person propounding the Will has got to prove
that the Will was duly and validly executed. That cannot be done by simply
proving that the signature on the Will was that of the testator but must also
prove that attestations were also made properly as required by Clause (c) of
Page 32 of 37

Section 63 of the Succession Act.


It is true that Section 68 of Evidence Act does not say that both or all
the attesting witnesses must be examined. But at least one attesting witness has
to be called for proving due execution of the Will as envisaged in Section 63.
But what is significant and to be noted is that that one attesting witness
examined should be in a position to prove the execution of a Will. To put in
other words, if one attesting witness can prove execution of the Will in terms of
Clause (c) of Section 63, viz., attestation by two attesting witnesses in the
manner contemplated therein, the examination of other attesting witness can be
dispensed with. The one attesting witness examined, in his evidence has to
satisfy the attestation of a Will by him and the other attesting witness in order to
prove there was due execution of the Will.
If the attesting witness examined besides his attestation does not, in
his evidence, satisfy the requirements of attestation of the Will by other witness
also it falls short of attestation of Will at least by two witnesses for the simple
reason that the execution of the Will does not merely mean the signing of it by
the testator but it means fulfilling and proof of all the formalities required under
Section 63 of the Succession Act.”
Explanation of suspicious circumstances
In Sushila Devi v. Pandit Krishna Kumar Mishra, AIR 1971 SC 2236, it was
held that if the bequest made in a Will appears to be unnatural then the Court has to
scrutinize the evidence in support of the execution of the Will with a greater degree of care
than usual. In Balathandayutham v. Ezhilarasan (2010) 5 SCC 770, it is further held
that when a Will is surrounded by suspicious circumstances, the person propounding the
Will has a very heavy burden to discharge and unless it is satisfactorily discharged, Courts
will be reluctant to treat the document as the last Will of the testator.
However, suspicion cannot be raised just because natural heirs have been ignored in
the Will. In V. Prabhakara v. Basavaraj K. (Dead) by LR. and anr., AIR 2021 SC 4830
it has been held that a testamentary court is not a court of suspicion but that of conscience.
A mere exclusion of either brother or sister per se would not create a suspicion unless it is
surrounded by other circumstances creating an inference. In a case where testatrix wass
accompanied by the sister of the beneficiary of the Will and the said Will was attested by
another brother, there is no room for any suspicion when both of them have not raised any
issue.
Active participation by legatee
Where the propounder himself has taken prominent role in the execution of the
Page 33 of 37

Will, that itself is generally treated as suspicious circumstance. In this regard, the
following words of the Apex Court in H. Vankatachala Iyengar v. B.N. Thimmajamma,
AIR 1959 SC 443, is worth to refer here –
"If it is shown that the propounder has taken a prominent part in the execution
of the Will and has received substantial benefit under it, that itself is generally
treated as suspicious circumstance attending the execution of the Will and the
propounder is required to remove the said suspicion by clear and satisfactory
evidence..."
The aforesaid case law has been followed in latest judgment of Kavita Kanwar v.
Pamela Mehta & ors, AIR 2020 SC 2614.
Admission of Will
Admission of Will does not absolve the burden to prove execution thereof. In V.
Prabhakara (supra), it has been held that when a party makes a claim based upon
revocation of the earlier Will, as indicated in the subsequent one, the said
acknowledgement of the former. Where a party admits the execution of the document in
the nature of a Will, which is otherwise proved in accordance with section 63 and section
68 of the Indian Succession Act and Indian Evidence Act respectively, it becomes a
relevant fact duly proved.
Where testator is illiterate, burden is heavy
Where testator is illiterate or affixes thumb impression or is extremely old or on
death bed, the facts such as Will was dictated in accordance with his instructions; that it
was typed out in accordance with his instructions; that it was read out to him and he
understood the same; and that after having done so he has affixed his left thumb
impression on the Will on his own free will becomes important. In Aklesh v. Sandeep,
2014 (II) MPWN 61, it has been held that if above facts are not proved, the Will cannot be
accepted.
Readers are further advised to refer JOTI Journal October 2013 issue for detailed
article on “Proof of Will”.
30. PRESUMPTION OF ENTRIES IN LAND RECORDS
Presumption
Section 117 of the MP Land Revenue Code, 1959 (MPLRC) provides that –
“117. Presumption as to entries in land records.- All entries made under this
chapter in the land records shall be presumed to be correct until the contrary is
proved.
Page 34 of 37

Nature of presumption
The presumption u/s 117 MPLRC is rebuttable resumption. It is enacted merely as a
rule of evidence dealing with onus of proof. In appropriate cases, where the Court is
satisfied that the entries were suspicious or their credibility was otherwise doubtful, the
Court may refuse to draw a presumption and insist on proof aliunde the entries. Reference
may be made to Malti v. Devi Ram, 1993 LawSuit (MP) 5.
Revenue entries are not proof of title
There is a series of judgments of the apex Court where it has been categorocally
held that entries in land records do not confer title and such entries cannot be relied upon
to prove title over the property. In leading case Durga Das v. Collector and others (1996)
5 SCC 618, apex Court considering the entries in revenue record mandated as under –
"Mutation entries do not confer any title to the property. It is only an entry for
collection of the land revenue from the person in possession. The title to the
property should be on the basis of the title they acquired to the land and not by
mutation entries."
The same principle has been followed in Union of India and others v. Vasavi Co-
operative Housing Society Limited and others, (2014) 2 SCC 269 and Municipal
Corporation, Gwalior v. Puran Singh @ Puran Chand & ors., (2015) 5 SCC 725
where it was held that even if the entries in the Record of Rights carry evidentiary value,
that itself would not confer any title on the plaintiff on the suit land in question. Plaintiffs
have to show, independent of those entries, that the plaintiff's predecessors had title over
the property in question and it is that property which they have purchased. The same view
has been reiterated in recent judgment of the apex Court in Jitendra Singh v. State of
Madhya Pradesh, 2021 LawSuit (SC) 488.
Entries made without order of competent authority – No presumption
In Chudamani v. Shri Ramadhar, 1991 RN 61, it was further held that under
section 117 of MPLRC, on entries made by Patwari in remarks column of khasra, no
presumption of correctness can be attached. In Ismail v. State of M.P., 1999 RN 170, it
has been laid down that stray entries is remarks column of khasra have no evidentiary
value.
The observation of the apex Court in Baleshwar Tewari v. Sheo Jatan Tiwary,
AIR 1997 SC 2089 may also be referred here –
“Entries in revenue records is the paradise of the patwari and the tiller of the
soil is rarely concerned with the same. So long as his possession and enjoyment
is not interdicted by due process and course of law, he is least concerned with
entries. It is common knowledge in rural India that a raiyat always regards the
Page 35 of 37

lands he ploughs, as his dominion and generally obeys, with moral fiber the
command of the intermediary so long as his possession is not disturbed.
Therefore, creation of records is a camouflage to defeat just and legal right or
claim and interest of the raiyat, the tiller of the soil on whom the Act confers
title to the land he tills.”
Order set aside in appeal – No presumption
In Ram Kumar and another v. Kamla Prasad and others, 1996 RN 337 and
Chudamani v. Shri Ramadhar, (supra), it was held that certainly when khasra entries
made as per order of Tahsildar and concerning order has been set aside in appeal, then
such khasra entries have no value.
Longer period of entries raise stronger presumption
The presumption enshrined u/s 117 of the MP Land Revenue Code, 1959 relating to
the entries made in record of rights becomes stronger where entries are continuous and for
longer period. The observation of our High Court in Malti v. Devi Ram, 1993 LawSuit
(MP) 5, is condign to refer here –
"9.........The longer the period of entries, the stronger would be the presumption that
is, if the entry continues to be repeated for a number of years, year after year,
without being challenged, the presumption would gain better strength. Of course, it
is true that in appropriate cases, where the Court is satisfied that the entries were
suspicious or their credibility was otherwise doubtful, the Court may refuse to draw
a presumption and insist on proof aliunde the entries, the presumption enacted
being merely a rule of evidence dealing with onus of proof."
31. COMPETENCY OF CIVIL COURT TO NULLIFY THE ORDERS OF
REVENUE COURTS
The provisions predicated u/s 111 of MPLRC is as under –
"111. Jurisdiction of Civil Courts.- The Civil Courts shall have jurisdiction to
decide any dispute to which the State Government is not a party relating to any
right which is recorded in the record-of-rights."
The principle laid down by Constitutional Bench of Hon'ble Supreme Court in
Dhulabhai v. State of Madhya Pradesh, 1968 LawSuit (SC) 94, has to be followed by
every Court of law. In this case, the apex Court has held as under –
"It is settled law that the exclusion of the jurisdiction of the Civil Courts is not
be readily inferred, but that such exclusion must either be explicitly expressed
of clearly implied. It is also well settled that even if jurisdiction is so excluded,
the Civil Courts have jurisdiction to examine into cases where the provisions of
Page 36 of 37

the Act have not been complied with, or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure."
Our High Court in Reshma Bai (Smt.)and others v. Kanchansingh and others
1996 RN 144 (High Court), has held that Civil Court has jurisdiction to examine whether
any forum has exceeded its jurisdiction in passing the order under challenged.
In view of the aforesaid provision, it is well settled that any order of Civil Court
pertaining to the title of the suit lands is binding upon the Revenue Courts. Hence, the
Revenue Courts are bound to rectify its orders and act in accordance with the adjudication
of Civil Court. As such, a separate order of Civil Court to annul the orders of Revenue
Court is not required. However, Civil Court may at the same time declare that the order of
Revenue Court is nullity and not binding.
32. PRINCIPLES OF CALCULATION OF MESNE PROFITS
The criteria for calculation of mesne profits is not what the owner looses by reason
of deprivation from possession but what the trespasser received or might have received
with ordinary diligence. In Fatehchand v. Balkrishna Das AIR 1963 SC 1405, apex
Court has observed that the normal measure of mesne profits is, therefore, the value of the
user of the land to the person in wrongful possession.
33. EVEN VOID ORDERS ARE BINDING
Sometimes defence is raised that order challenged by plaintiff is void and thus not
binding. Apex Court in State of Kerala v. M.K. Kunhikannan Nambiar (1996) 1 SCC
435 has ordained that even a void order passed by any authority in between the parties
will in fact be effective in between the parties until it is successfully avoided or challenged
before the higher forum. Therefore, unless an order is set aside in appropriate proceedings,
the same is valid and binding between the parties.
34. QUESTION OF LIMITATION – DUTY OF COURT
Section 3 of the Limitation Act bars the institution of any suit after expiry of the
period of limitation prescribed in the said Act. The question is whether Court can dismiss a
suit being barred by limitation when no such defence is taken? This question has been
recently answered by the apex Court in Nazir Mohamed v. J. Kamala and ors., 2021 (4)
MPLJ 46 (SC) by holding that the Court is obliged to dismiss a suit filed after expiry of
the period of limitation, even though the plea of limitation may not have been taken in
defence.

35. DOCUMENTS HAVE PRIMACY OVER ORAL EVIDENCE


Best evidence rule is also contained u/s 91 and 92 of the Evidence Act which
excludes oral evidence for the purpose of contradicting, varying, adding or subtracting
Page 37 of 37

from the terms of any document. Recently, in V. Anantha Raju v. T.M. Narasimhan,
2021 SCC OnLine SC 969, apex Court has held that written instruments are entitled to
much higher degree of credit than parol (oral) evidence. It is of principle because such
instruments are in their own nature and origin, entitled to a much higher degree of credit
than parol evidence.
III. CONCLUSION
An effort has been made to compile important principles of appreciation of
evidence in civil cases. It can be seen that most of the principles are based on inferences
and presumptions. Some other principles have been developed through judicial
pronouncements. However, the list is not exhaustive. Judging skills may be sharpen by
more and more diverse reading and judicial wisdom is developed with experience. Readers
may read the complete judgments referred in this article to gather how these principles
have been applied to the facts. This may help them in better and pragmatic understanding
of the principles.

You might also like