TaxTMI 
TaxTMI 
2005 (8) TMI 727
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the execution of the said sale-deed by Ramdas and others in her favour was not disputed by the petitioners herein (tenants), but specifically admitted in the earlier suit filed by them (C.S. No. 104-A/ 2002). The said suit was filed by the petitioners herein for specific performance of an alleged agreement of sale dated 2-5-1996 executed by the previous owner Ramdas in favour of Vijay Singh Rana (of whom they are the legal heirs) and for a declaration that the said sale deed executed by Ramdas and others in favour of the respondent herein was void. The said civil suit was dismissed by judgment and decree dated 7-8-2003, which is challenged by petitioners herein in F.A. No. 337/2003. The petitioners herein opposed the said application. They submitted that the Respondent herein ought to have taken steps to summon the original sale-deed instead of trying to produce a certified copy as secondary evidence. The trial Court, by order dated 22-2-2005, allowed the said application on two grounds. The first ground is that as the original sale deed had been produced on the file of F.A. No. 337/2003, it will be time consuming to summon the said deed. The second ground is that the sale d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as meaning the document itself produced for inspection of the Court. Section 63 defines Secondary evidence as meaning and including among others certified copies given under the provisions of the Evidence Act. Section 64 provides that documents must be proved by primary evidence except in the cases mentioned in the subsequent sections. 2. Section 65 deals with cases in which secondary evidence relating to documents may be given. The relevant portion of Section 65 is extracted below: Secondary evidence may be given of the existence, condition or contents of a document in the following cases: (a) when the original is shown or appears to be in the possession or power - of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... but is returned to the person who presented such document for registration, on completion of the process of registration, An original registered document Is not therefore a public record kept in a state of a private document, Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in Section 74, as 'public documents'. Any document which is not a public document is a private document. We therefore have no hesitation in holding that a registered sale deed (or any other registered document) is not a public document but a private document. This position is made abundantly clear in Gopal Das v. Shri Thakurji AIR 1943 Privy Council 83, wherein the Privy Council considering the question whether a registered receipt is a public document observed thus: It was contended by Sir Thomas Strongman for the respondents that the receipt comes within para 2 of Section 74, Evidence Act, and was a "public document"; hence under Section 65(e) no such foundation is required as In cases coming within Clauses (a), (b) and (c) of that section. Their Lordships cannot accept this argument since the original receipt, o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m Section 51 that all deeds relating to immovable property of which registration is compulsory under Section 17 or of which registration is optional under Section 18 (and the orders/certificates/instruments enumerated in Section 89) are entered or filed in Book 1 kept by the Registering Officers. The word "entered or filed" in Book I means the verbatim copying of the deed in the book or filing of a complete copy of the deed, with all endorsements and certificates in, Book 1. In fact, Section 52 requires that every document admitted to registration shall be copied in the Book appropriated therefor. 3. Section 57 requires the Registering Officers to allow inspection of Books No, 1 and 2 and indexes relating to Book No. 1 and to give certified copies thereof. The relevant portion of the said Section is extracted below: (1) Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all time open to inspection by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (Deed of sale etc.) is not a public document. It is a private document. (ii) Book 1 kept in the Registration Offices under the Registration Act, where the Registered documents (private documents) are copied, entered or filed, is a public document. (iii) A certified copy of a registered document, copied from Book 1 and issued by the Registering Officer, is neither a public document, nor a certified copy of a private document, but is a certified copy of a public document. Re : Question (iii); The next question is whether a certified copy of a public document, issued by a registering officer, can be received in evidence without any further proof. We may refer to the relevant portions of Sections 76, 77 and 79 of Evidence Act extracted below in this behalf: 76. Certified copies of public documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be...and such copies so certified....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the original documents. But the law is that a certified copy of what has been copied in the books of registration is admissible to prove the contents of the original document . only when a case is made out for introduction of secondary evidence, i.e. by proof of the loss of the original or where a original is withheld by a party in whose possession it is or is presumed to be. In this case the plaintiffs have done all they could by giving notice to defendants 3 and 4 to produce the original which notice has not been complied with. Therefore, the requisite essentials for the adducing of secondary evidence have been properly complied with. When once the case for the introduction of secondary evidence is made out, certified copy got from the Registrar's office can be admitted under Section 57, Sub-section (5) of the Indian Registration Act without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. It seems to me that the plaintiffs have satisfied the Court that the necessary prerequisites for the introduction of secondary evidence as contemplated under Sections 65 and 66 of the Evidence Act have been made out. When o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts of the original document itself. A combined reading of the provisions of Section 65(b) of the Evidence Act and Section 57(5) of the Registration Act may be put thus. By reasons of the admission made by the first defendant of genuineness of the certified copy within the meaning of Section 65(b) of the Evidence Act, the certified copy became admissible in evidence as secondary evidence under Section 65. By reason of Section 58(5) of the Registration Act, the said copy becomes admissible for the purpose of proving the contents of the original document itself. I would also hold that the certified copy is also admissible under Section 65(e) and (f) of the Evidence Act. Secondary evidence may be given, if the original is a public document within the meaning of Section 74. The definition of a public document under Section 74 takes in public records kept in any State of private documents. The Registrar's Office certainly keeps a public record of all sale deeds registered in that office. Section 76 enables an officer having the custody of a public document to give a certified copy. The certified copy is therefore admissible in evidence both under Section 65(e) and (f) of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... admissible in evidence. Woodroffe and Ameer Ali's Law of Evidence (14th edition, Vol. 2) explains that matter thus: Under this Clause (that is Clause (2) of Section 74), entries of the copies of private documents in Book 1, 3 and Book 4 of the Registration Office being public records kept of private documents are public documents, and as such may be proved by certified copies, that is certified copies may be offered in proof of those entries. But neither these entries nor certified copies of these entries, are admissible in proof on the contents of the original documents so recorded unless secondary evidence is allowable under the provisions of this Act. (at page 1710) a registered deed of sale is not a document of which a certified copy is permitted by law to be given in the first instance without having been introduced by other evidence. Section 57 of the Registration Act only shows that when secondary evidence has in any way been introduced, as by proof of the loss of the original document, a copy certified by the Registrar shall be admissible for the purpose of proving the contents of the original; that is, it shall be admitted without other proof than....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d as secondary evidence of the original sale deed under Clause (a) of Section 65, by establishing that the original is in the possession or power of the person against whom the document is sought to be proved, or in the possession or power of any person out of reach of or not subject to the process of the Court, or in the possession of any person who is legally bound to produce it, and such person (of the three categories) does not produce it in spite of notice under Section 66 of the Act. A certified copy of the sale deed can also be offered as secondary evidence under Clause (c) of Section 65, by showing that the original is destroyed or lost (or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time). Lastly a certified copy can be offered as second evidence under Clause (b) of Section 65, where the existence, condition or contents of the (sic) has been admitted in writing by the person against whom it is proved or by his representative in interest, and such admission is proved. The second step is to prove the execution of the deed (whether what is produced in the original or cer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... But in the cases falling under clauses (a), (b) or (c), the secondary evidence can be a certified copy in the case of a registered instrument or by other modes described in Section 63 in regard to unregistered documents. Be that as it may. We may summarize the position thus: (i) Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e) need not be preceded by laying of any foundation for acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act relation to a private document copied therein. (ii) Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65. (iii) Production and marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a manner known to law (Section 67 and 68 and ensuing sections in chapter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lied then certainly certified copies of any sale deed could be used only for collateral purposes and it did not require that strict proof and the documents were not private documents. A careful reading of the said decision shows that the Learned single Judge did not hold that a registered sale deed is a public document. On the other hand, he followed the judgment of the Gauhati High Court where it is held that an original sale-deed is a private document. In Nawab Saheb 2003 AIHC 544 (supra), a learned single Judge however proceeded on an erroneous assumption that Vasudeo had held that a registered sale deed is a public document under Section 74 of the Evidence Act. The learned single Judge further held as follows: The registered sale deed was sought to be brought on record as an additional evidence. Undoubtedly it is a certified copy of the sale deed and, therefore, it is a public document. Hence, it can be accepted as evidence. The above observations make it clear that the Learned single Judge proceeded on the basis that a registered sale-deed is a public document. He also proceeded on the assumption that a certified copy of a sale deed is also a public document.....