This is the last part of my multi part article series in which I will try to conclude whatever little knowledge I have gained on the subject by doing research. In the previous parts, we majorly dealt with the objections that are related to the mode of proof. Now coming to the second type of objections that usually comes before the court in relation to marking of exhibits on documents in evidence stage is:
Objection that Document is Inherently Inadmissible in Evidence
Inherent-inadmissibility of documents’ arises from the following:
- Irrelevancy
Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:
“5. Evidence may be given of facts in issue and relevant facts- Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation- This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.
So documents that are irrelevant to the fact in issue and doesn’t relate to it any manner whatsoever, than such documents are inherently inadmissible owing to lack of relevancy. Now whether document is relevant or irrelevant depends upon the facts and circumstances of each case depending upon what is the fact in issue that needs to be proved.
- When document in relevant but it can’t be admitted in evidence due to bar of Indian Evidence Act
For ex. A confession made by an accused related to the crime he committed is very much relevant, but due to bar of Section 25[i] of Evidence Act it can’t be admitted in evidence and no exhibit can be marked upon such document. Similar is the case with Interrogation Note prepared during Investigation stage by Investigation officer, statements made to police officer under section 161 CrPC by prosecution witnesses (exception to this is when Prosecution officer contradicts the witness during the trial with the statements he gave to police during investigation stage then in such cases the part of the statement with which he is contradicted is exhibited). More so the notices given by the investigation officer during the investigation of offences related to Motor Vehicle under Section 133[ii] and 134[iii] to the driver and owner of the vehicle also falls under the same category and can’t be admitted into evidence. Similar is the case with confessional statement made by the accused under Section 27[iv] of Evidence Act when it is not supported by discovery. Moreover copy of a copy can’t be exhibited.
In Roman Catholic Mission v State of Madras[v], it was held that a document not admissible in evidence though brought on record, has to be excluded from consideration.
In Jainab Bibi Saheb v Hyderally Saheb[vi], it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue.
- Non-registration of Documents that require compulsorily registration
Section 17[vii] of Registration Act is a disabling section. The documents defined in clauses (a) to (e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs. 100/- and more requires compulsory registration. Part X of the Act deals with the effect of registration and non-registration. Section 49[viii] gives teeth to Section 17 by providing effect of non-registration of documents required to be registered.
Section 49 reads as:
Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall –
- affect any immovable property comprised therein, or
- confer any power to adopt, or
- 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 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.
Supreme Court in K.B. Saha and Sons Private Limited v Development Consultant Pvt Ltd[ix] held that a document required to be registered is not admissible in evidence under Section 49 of the Registration Act and such unregistered document can only be used as an evidence of collateral purpose).
The observation of the Karnataka High Court in Nanda Behera v Akhsaya Kumar Behera[x], ,that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.
What is Collateral Purpose
In the case of Rana Vidya Bhushan Singh vs Ratiram[xi], the following has been laid down:
“A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property”.
S. Kaladevi vs V.R. Somasundaram & Ors.[xii] Hon’ble Apex Court held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.
From the principles laid down in the various decisions of Supreme Court and the High Court, it is evident that:
- A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
- 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.
- A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
- 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 immoveable property of the value of one hundred rupees and upwards.
- 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.
If Objection is raised on the above mentioned grounds, then at what stage court should decide such objections
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v State of Gujarat[xiii], that:
“It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. When so recast, the practice which can be a better substitute is this, whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
Some exceptions to the laws and principles that we have discussed in all the parts
- Photocopy of an unstamped or insufficiently stamped document can be impounded in Rajasthan by virtue of Rajasthan Stamp Act
According to Section 37 (4) of Rajasthan Stamp Act, when a person who is in-charge of a public office, during the course of inspection or otherwise, detects from an instrument or copy thereof or when it appears therefrom to him that the instrument is not duly stamped, then such person shall forthwith report it about that instrument or copy and make a reference to the Collector in that matter.
After this Section 39 (e) of the act states that nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid.
According to Section 64 of Rajasthan Stamp Rules– which provides for the practical procedure when unstamped or under stamped instrument during inspection or otherwise is found by officer in charge. The first thing the public officer will do is he will forthwith report it to the Collector. The Collector shall thereupon issue a notice to the executants or such other person as may be liable to pay the duty under section 32, 33 and 34 of the Act, requiring them to produce the original instrument before the Collector within 30 days. On receipt of original instrument or in case it is not produced within 30 days from the service of notice as issued under sub-rule (2), the Collector shall impound its copy and require payment of proper duty together with penalty under section 44 of the Stamp Act along with proper registration fee on such duty.
The joint reading of all these provision show that in state of Rajasthan, if the instrument is unstamped and a report is made to Collector stamps in this behalf, then he has the power to impound its copy when the party to whom document belongs doesn’t produce the original within the time specified by the collector.
- The objection as to document being unstamped or insufficiently can be reserved and ordered to be decided at last stage when there is doubt as to the nature of the document
In M/S Z Engineers Construction Pvt vs Bipin Bihari Behera[xiv], generally speaking, the objection relating to stamp duty are required to be decided before proceeding further. However, in a case where evidence is required to determine the nature of the document (when it is not clear whether the document will attract levying of stamp duty or whether it falls under definition of instrument), it is reasonable to defer the admissibility of a document for insufficient stamp duty at the time of final decision in the suit.
[i] https://indiankanoon.org/doc/494844/
[ii]https://indiankanoon.org/doc/561735/
[iii] https://indiankanoon.org/doc/734786/
[iv] https://indiankanoon.org/doc/1312051/
[v] [1966] 3 SCR 283
[vi] (1920) 38 MLJ 532
[vii] https://indiankanoon.org/doc/561156/
[viii] https://indiankanoon.org/doc/1768154/
[ix] https://indiankanoon.org/doc/692129/
[x] 2017 AIR (CC) 1893
[xi] [1969 (1) UJ 86 (SC)]
[xii] (2008) 8 SCC 564
[xiii] AIR 2001 SC 1158
[xiv] CIVIL APPEAL NO. 1627 OF 2019