Appreciation of Evidence in Civil Cases by Yashpal Singh
Appreciation of Evidence in Civil Cases by Yashpal Singh
Appreciation of Evidence in Civil Cases by Yashpal Singh
PRINCIPLES OF
APPRECIATION OF EVIDENCE IN CIVIL CASES
– Yashpal Singh
Deputy Director, MPSJA
INDEX
I. Introduction
6. Doctrine of estoppel
7. Proof of documents
Execution of document – how proved?
Effect of proof of execution of document
Admission of will
Where testator is illiterate, burden is heavy
Nature of presumption
Revenue entries are not proof of title
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.
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
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
(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
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
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
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
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
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
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.
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.