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2002 SCC OnLine Bom 582 : (2002) 6 Bom CR 507 : (2003) 105 (1) Bom LR
672

Bombay High Court

(Aurangabad Bench)
(BEFORE N.V. DABHOLKAR, J.)

Vithal Ramrao Ingale (Patil) … Petitioner;

Versus
Navalbai Digambar Deshmukh … Respondent.
Civil Revision Application No. 506 of 2002
Decided on July 4, 2002
The Judgment of the Court was delivered by
N.V. DABHOLKAR, J.:— Heard Advocate Shri S.S. Choudhary for petitioner.
2. Revision petitioner-original defendant in Regular Civil Suit No. 24/1997 on the
file of Civil Judge, Junior Division, Tuljapur, takes an exception to the order dated 30-8
-2001 passed by the learned Judge pertaining to a document, “ancient document”
produced before the trial Court. According to defendant, that is a document executed
and registered by his adoptive father, while taking him in adoption on 8 Meher 1355
Fasli (i.e. some time in the year 1945-1946 A.D.). Even after obtaining say of the
other side, the learned trial Judge has allowed the application partly. He has accepted
the case of defendant revision petitioner that document is ancient document being
more than 30 years old. He has also accepted that it came from proper custody, since
it was in the custody of defendant, who claimed that he is the adopted son. Taking
into consideration that the two conditions precedent for section 90 of Indian Evidence
Act to come into play, are satisfied, the learned Judge, by the impugned order,
observed that the document is to be exhibited (read in evidence) for limited purpose
i.e. to the extent of genuineness of execution, attestation, signatures and handwritings
and every other part in the document is to be presumed to be the signatures,
attestations and handwritings of the persons, who are purportedly indicated to be
executors, attesters and scribe of the document. The learned Judge, however, refused
to read the contents of the document in evidence. It must be said that the learned
Judge not shut the doors on the face of defendants, so far as proof of contents of the
document. In the concluding part of the order, he observes “The defendant is at liberty
to prove the contents of said document”. He has exhibited the document to the extent
of presumptions permitted by section 90 of Indian Evidence Act.
3. Section 61 of Indian Evidence Act requires that proof of the contents of the
documents is ordinarily to be by primary evidence and in exceptional circumstances,
by secondary evidence. By virtue of section 62, primary evidence means, a document
itself produced for the inspection of the Court. Section 64 mandates that documents
must be proved

Page: 509

by primary evidence except in the cases carved out by section 65 of the said Act.
According to Advocate Shri Choudhary, since the document itself is produced for
perusal by the Court, even the contents can be read in evidence by the trial Court.
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4. Advocate Shri Choudhary has placed reliance upon observations of the Supreme
Court in the matter of (Shri Lakhi Baruah v. Shri Padma Kanta Kalita)1 , reported at
(1996) 8 SCC 357 : A.I.R. 1996 Supreme Court 1253. Having gone through the
paragraphs relied upon by Shri Choudhary i.e. paragraphs 15 to 17 of the judgment, it
can be seen that the issue regarding debate in that judgment was whether
presumption under section 90 was available on production of a certified copy of an
ancient document. We are not concerned with such controversy, because original
document, which is claimed to be ancient document is produced before the trial Court
and trial Court has accepted the same being ancient document and has also given
benefit of all those presumptions, which can be raised by virtue of its being ancient
document having come before the Court from proper custody, in the light of section 90
of Indian. Evidence Act.
5. The dispute that remains is whether by production of original document, the
contents stand proved. As prescribed by section 62, contents of the document are
required to be proved by making the original document available to the Court and the
document is now so available. The reason why the learned Judge has held that
contents of the document are still not proved can be seen in the practice that is
followed in the trial courts for proving the documents and contents of the documents.
Ordinarily, the executor of the document is examined in order to swear on oath that
contents were written by the scribe as desired by him and having ascertained that the
contents are correct, he has signed the document in execution. In case, the executor
is not available because of death, either the scribe and if scribe is not available, the
attesting witnesses are examined in order to demonstrate to the Court that the
contents of the document are as per instructions on desires of the executor. If none of
them are available, as a matter of practice, the beneficiary of the document or
executee in whose favour the document is executed is put into the witness box in
order to swear that the contents in the document are as instructed by the executor.
Thus, as a matter of practice, the trial courts do not exhibit the documents for the
purpose of admission of contents of the document in evidence, unless oral evidence is
tendered, that document before the Court is genuine one plus contents in the
document are such as were desired, instructed and dictated by the executor.
6. This is not a rule of practice only, but it has its foundation in sections 61 and 62
of Indian Evidence Act. Since section 61 requires that contents of the document
should be proved by primary evidence and the document itself is primary evidence,
production of original document is necessary in order to establish that document of
particular nature was reduced to writing. It must be taken into consideration that the
documents and their contents are relied upon by the parties in order to establish the
agreement, contract, transaction, transfer or event embodied within the contents of
the document. Therefore, merely placing the document in original for perusal of the
Court would not be adequate to prove the event embodied within the contents. For
that purpose, somebody who

Page: 510

is a witness to the execution of the document, is required to enter the witness box and
affirm that the contents of the document are true and correct, in the sense that events
had occurred or parties had intentions and had accordingly acted, as depicted in the
document.

7. In the present case, the document being ancient document and accepted to be
so by the trial Court, it has drawn all the presumptions regarding truthfulness of the
contents. As can be visualized from the practice followed in the trial courts, which is
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inevitable in view of sections 61 and 62 of Indian Evidence Act the learned Judge has
deferred exhibition and admission in evidence of the contents of the document till
defendants examine somebody from the witness box to state that the contents of the
document are true and correct, as desired by the executor.
8. Advocate Shri Choudhary has expressed that defendants may face the difficulties
in finding out the witnesses since the executor is dead, the scribe may not be alive.
The same thing may be true about the attesting witness.
9. Availability of the witnesses can be judged from the contents of the document.
When the defendant was given in adoption, he was given in adoption because his
natural parents had elder brother. If the natural parents are not alive, the elder
brother may be witness and Advocate Shri Choudhary has, during the course of
arguments, stated that father, who took the defendant in adoption, died after about
10/11 years since the adoption. Therefore, it can be seen that the defendant, who is
adopted son and beneficiary of the document executed, must have received custody of
the document at the time of death of his adopting father, when he was about 14/15
years old and in that capacity, the defendant himself can be a witness, who can swear
regarding correctness of the contents and invite the Court to read the contents in
evidence as truthful account of the events. Unless such a procedure is followed, the
learned Judge cannot be said to have used his discretion in an illegal or materially
irregular way, when he said that the document is exhibited to the extent presumptions
permissible by section 90 of Indian Evidence Act and it is required to be exhibited to
the extent of contents, awaiting somebody affirming the correctness of those.
10. Otherwise also since the issue of proof of contents is kept open by the learned
Judge, it is not necessary to revise the order. In view of above, no interference is
called for in the order of learned Civil Judge in revisional jurisdiction. However, it is
clarified that it will be open for the defendant to lead oral evidence for the purpose of
proving the contents as already desired by the trial Court. At the request of Advocate
Shri Choudhary, it is further clarified that in case defendant had already closed the
evidence before the impugned order was passed or during the pendency of this
revision petition, he shall be allowed an opportunity to lead evidence for limited
purpose i.e. proving the contents of this document.
11. Save and except above directions, the revision petition is disposed of.
12. Order accordingly.
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