Section 115 IEA:

Estoppel:

When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.

Illustration:

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

Rule of estoppel is based on Rule of equity and provide that when a person has made false representation and upon such representation other person has acted to his disadvantage then law prohibits the former to turn back and say that representation was false.

The Ingredients of Rule of Estoppel as Defined Under Section 115:

(a) There must be some representation.

(b) The Representation must be made with the intention to be acted upon.

(c) Representation must have been acted upon.

Representation:

First requirement of Rule of Estoppel is that there must be representation either by words or by conduct to another. This representation may be untrue or false or of some existing fact, made to person who is not aware the truth of that fact. Where the party effected by the representation had come to know before acted upon it, that the representation was false he cannot avail the Rule of Estoppel.

In Mohri Bibi v. Dharam Das Ghosh A minor entered into contract of Mortgage Later when Minor claimed that he being minor at the time of contract, so contract is void. Fact that Mortgage was minor was in the knowledge of Mortgage Court held that Rule of Estoppel is not applicable as Mortgage was aware about his minority.

Intention:

It is not necessary that the representation should be false to the knowledge of person making it provided that (i) it is intended to be acted upon in the manner in which it has been acted upon or (ii) the person who makes it so conducts himself that a reasonable man would take the representation to be true.

Representation Acted Upon:

It is also necessary to invoke the benefit of estoppel that representation must have been acted upon taking it to be true by the party to whom it was made.

In Kasinka Trading v. Union of India, (1995) 1 SCC 274,case, the Court observed as under:- In order to operate as estoppel under the aforesaid section, three conditions must be fulfilled

• there must be a representation made by the opposite party with a view to cause belief
• the representation should have been believed under circumstances that its falsity could not be ascertained in spite of due diligence and
• actions arising out of such belief.

There can be no estoppel where truth is accessible. Again, there can be no estoppel in the absence of representation or conduct amounting to such. Further, there can be no estoppel where a party is not misled and has not been induced to do something detrimental to his interest owing to the action of the other party

Thus, for application the doctrine following conditions have to be satisfied

• There must be a representation made by one person to another person.
• The representation must have been made as to fact and not as to law.
• The representation must be as to an existing fact.
• The representation must be intended to cause a belief in another.
• The person to whom the representation is made must have acted upon that belief and must have altered his position.

In Motilal Padampat Sugar Mills v. State of U.P., AIR 1979 SC 621 case, where the Chief Secretary of the Government gave a categorical assurance that total exemption from sales tax would be given for three years to all new industrial units in order them to establish themselves firmly. Acting on this assurance the appellant sugar mills set up a hydrogenation plant by raising a huge loan. Subsequently, the Government changed its policy and announced that sales tax exemption will be given at varying rates over three years. The appellant contended that they set up the plant and raised huge loans only due to the assurance given by the Government. The Supreme Court held that the Government was bound by its promise and was liable to exempt the appellants from sales tax for a period of three years commencing from the date of production.

Promissory Estoppel:

Promissory estoppel is similar to one by representation but requires additional requirements to be met. It can be described as preventing a party from acting in a particular manner having previously promised not to. It is more accurate to describe the estoppel of suspending rather than extinguishing contractual rights.

To establish promissory estoppel, there must be an established legal relationship as well as a clear and unambiguous promise that for all intents and purposes was expected to be fulfilled whether it is express or implied. The party must then change their position on that promise (i.e. go back on their promise) and if that promise were to have reneged on an injustice would occur. There is also no need for the defendant to provide consideration for the promise.

Kinds of Estoppel:

Estoppel by Representation:

It prevents a party from contradicting a previous misrepresentation by subsequently attempting to take a new opposing position. i.e., it prevents a party from saying a set of facts or a situation is untrue when they previously represented that they were.

In Pickard v Sears [1837] (112 E.R. 179) case, where Pickard had a mortgage on some machinery. The creditor of the mortgage seized then later sold this machinery to Sears. During the seizure, Pickard made representations that he had no title on the machinery which influenced the creditor and Sears to change their actions accordingly. Pickard later claimed the property but was estopped from arguing this position for failing to mention this initially.

Estoppel by Record:

Under this kind of estoppel, a person is not permitted to dispute the facts upon which a judgment against him is based. It is dealt with by (i) Ss. 11 to 14 of the Code of Civil Procedure, and (ii) Ss. 40 to 44 of the Indian Evidence Act.

Estoppel by Deed:

Under this kind of estoppel, where a party has entered into a solemn engagement by deed as to certain facts, neither he, nor any one claiming through or under him, is permitted to deny such facts.  When a deed contains a specific and unambiguous statement of a specific fact and this is used as the basis for the transaction then estoppel by deed may apply. To establish estoppel by deed then both the parties will be named on the deed that is not void, voidable or rectifiable and the party who the estoppel is raised against has sought to deny the fact within the deed.

Estoppel by Conduct:

Sometimes called estoppel in pais, may arise from agreement, misrepresentation, or negligence. Estoppel in pais is dealt with in Ss. 115 to 117. (Estoppel in pais means “estoppel in the country” or “estoppel before the public.”

If a man, either by words or by conduct, has intimated that he consents to an act which has been done, and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained from doing, he cannot question the legality of the act to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct.

Equitable Estoppel:

The Evidence Act is not exhaustive of the rules of estoppel. Thus, although S. 116 only deals with the estoppel that arises against a tenant or licensee, a similar estoppel has been held to arise against a mortgagee, an executor, a legatee, a trustee, or an assignee of property, precluding him from denying the title of the mortgagor, the testator, the author of the trust, or the assignor, as the case may be.

Estoppel by Negligence:

This type of estoppel enables a party, as against some other party, to claim a right of property which in fact he does not possess. Such estoppel is described as estoppel by negligence or by conduct or representation or by a holding out of ostensible authority. Such estoppel is based on the existence of a duty which the person estopped is owing to the person led into the wrong belief or to the general public of whom the person is one.

Estoppel on Benami Transactions:

If the owner of property clothes a third person with the apparent ownership and a right of disposition thereof, not merely by transferring it to him, but also by acknowledging that the transferee has paid him the consideration for it, he is estopped from asserting his title as against a person to whom such third party has disposed of the property and who has taken it in good faith and for value.

Section 116 IEA:

Estoppel of tenants and of licensee of person in possession:

No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession there of shall be permitted to deny that such person had a title to such possession at the time when such licence was given.

Section 116 provides for estoppels of a tenant as against his landlord and of a licensee as against his licensor. The section provides that a person who comes into an immovable property taking possession from a person whom he accepts as to the landlord , is not permitted to say as against his landlord that he had no title to the property at the commencement of the tenancy. So long the relation of landlord and tenant stands and by which the tenant remains in possession of tenancy the principle of estoppel is applicable against the tenant.

Section 117 IEA:

Estoppel of acceptor of bill of exchange, bailee or licensee:

No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.

Explanation 1:

The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Explanation 2:

If a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

Section 117 deals with estoppel in respect of movable property. An estoppel under this section is based on agreement. It is applicable to:

• Against the acceptor of a bill of exchange.
• Against the bailee, and
• Against a licensee.

Acceptor of a bill of exchange:

An acceptor of a bill of exchange is not permitted to deny that the drawer had authority to draw or to endorse it. But there is an exception laid down in Explanation-I which provides that the acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Bailee:

A bailee of goods cannot be permitted to say that at the time of commencement of the bailment, the bailor has no authority to bail or to take them back. Under the Explanation-II, if a bailee delivers the goods bailed to a person other than the bailer, he may prove that such person had a right to them as against the bailor. A garage owner receiving a car for repairs is estopped from challenging the title of the person from when the car was received.

License:

Same rule is applicable here as applied in bailment

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Ambiguity in Documents and its Kinds:

Where any word, expression, sentence or statement is capable of giving more than one meaning, such word, expression etc. is called ambiguous. Ambiguity may be patent ambiguity or latent ambiguity. Where the ambiguity is apparent on the face of the document, it is called patent ambiguity. It is apparent from the reading itself. Latent ambiguity is that which seems certain and without ambiguity for anything that appears on the deed but there is some collateral matters out of the deed that breaths the ambiguity. Oral evidence is admissible to remove latent ambiguity.

The test to find the difference that whether the ambiguity is a patent ambiguity or a latent ambiguity is to put the document in the hands of an ordinary intelligent educated person. If on reading the document the ambiguity can be detected and no definite meaning can be understood then such ambiguity is patent ambiguity. If on perusal of document no ambiguity can be found by him and the meaning is definite but that document is applied with the instrument of facts, the ambiguity arises and its meaning becomes indefinite, then the ambiguity is the latent ambiguity.

Distinguish between Patent Ambiguity and Latent Ambiguity:

Section 93 IEA:

Exclusion of Evidence to Explain or Amend Ambiguous Document:

When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.

Illustrations:

(a) A agrees, in writing, to sell a horse to B for Rs. 1,000 or Rs. 1,500. Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

Thus, according to Section 93 of the Act, when a document is ambiguous on its face, no extrinsic evidence is allowed to explain or amend the instrument.

In Khan Gul v. Lakha Singh, AIR 1928 Lah 609 (FB) case, the Court held that where the document is plain and unambiguous, one has to read the words in their ordinary and grammatical meaning unless, it leads to absurdity and is repugnant to the intention of the parties as can be gathered from the other parts of the document.

In the case of Keshav Lal v. Lal Bhai T. Mills Ltd., AIR 1958 SC 512 case, the Supreme Court held that it would not be open for the parties or the court to remove the ambiguity or vagueness by relying upon the extrinsic evidence.

In Food Corporation of India v. Birendra Nath Dhar, AIR 1989 NOC Cal case, where there was a document of contract for transportation of foodgrains for two years. But the place where the amount for transportation was to be mentioned was left blank. The minimum wage to be paid was left blank. Contractor was giving different amounts. The Court held that under Section 93 of the Evidence Ac, no oral evidence can be allowed to fill up the blanks of the document.

Section 94 IEA:

Exclusion of Evidence Against Application of Document to Existing Facts:

When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

Illustration:

A, sells to B, by deed, “my estate at Rampur containing 100 bighas”. A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.

Section 94 puts stress on accurate application to existing facts when the language used in the document is plain and unambiguous. Court will not admit any evidence to contrary. Thus, this section comes into play when the language of the document is considered by the court with reference to any factual situation.

In General Court Marshal v. Col. Anil Tej Singh Dhaliwal, AIR 1998 SC 983 case the Supreme Court held that section 94 applies only when the execution of the document is admitted before the court and there are no vitiating circumstances against it.

Section 95 IEA:

Evidence as to Document Unmeaning in Reference to Existing Facts:

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

Illustration:

A, sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah.

In Pandit Chunchun Jha v. Sheikh Ebadat Ali AIR 1954 SC 345 case, the Supreme Court Observed: “where a document has to be construed the intention must be gathered, in the first place, from the document itself. If the words are express and clear., effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. the real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended”.

In Basavapunna Reddy v. Krishnayya, AIR 1066 AP 260 case, the Court held that where the document correctly identifies the property which is to be sold but in the annexed schedule wrongly mentions the house or survey number or its neighbours, oral evidence can be adduced to correct the mistake.

Section 96 IEA:

Evidence as to Application of Language which Can Apply to One Only of Several Persons:

When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.

Illustrations:

(a) A agrees to sell to B, for Rs. 1,000, “my white horse”. A has two white horses. Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether Haidarabad in the Dekkhan or Haiderabad in Sind was meant.

Section 97 IEA:

Evidence as to Application of Language to One of Two Sets of Facts, to Neither of which the Whole Correctly Applies:

When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

Illustration:

A agrees to sell to B “my land at X in the occupation of Y”. A has land at X, but not in the occupation of Y, and he has land in the occupation of Y but it is not at X. Evidence may be given of facts showing which he meant to sell.

In Banaphal Singh v. Noor Mohammad, AIR 1935 All 662 case, the Court held that where the document of sale mentions the boundaries which indicate that whole plot is sold but another part of it shows the survey number which indicates that only part of the plot was the subject matter of the of sale, extrinsic evidence is admissible to show whether the whole or only the part of the plot is intended to be sold.

Section 98 IEA:

Evidence as to Meaning of Illegible Characters, etc.:

Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.

Illustration:

A, sculptor, agrees to sell to B, “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell.

The Section enables the party to give evidence to explain the special meaning of the use of words and not a normal use. Expert advice under Section 45 of the Act can be obtained.

In RHLR Bahadur Estates v. Hern Chandra, AIR 1949 PC 179 case, the Court held that a judge shall not attempt to translate, however qualified to translate, as he is not witness and also the parties cannot test his translation.

Section 99 IEA:

Who May Give Evidence of Agreement Varying Terms of Document:

Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document. Illustration A and B make a contract in writing that B shall sell A certain cotton, to be paid for on delivery. At the same time they make an oral agreement that three months credit shall be given to A. This could not be shown as between A and B, but it might be shown by C, if it affected his interests.

Section 92 forbids the admission of evidence of an oral agreement for the purpose of contradicting, varying, adding to, or subtracting from, the terms of written document as between the parties to such document or their representatives in interest. This principle of Section 92 does not apply to third person under Section 99.

In the case of Bai Hira Devi v. Official Assignee of Bombay, AIR 1958 SC 448 case section 92 deals only with the matter related to contracts, grants and other depositions of the property but section 99 deals with all types of documents, whether it is a contract or not. Section 99 speaks only about varying the terms of a document.

Section 100 IEA:

Saving of Provisions of Indian Succession Act Relating to Wills:

Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 1 (10 of 1865) as to the construction of wills

Now this Section refers to the Indian succession Act, 1925 (39 of 1925)

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Chapter VII of the Indian Evidence Act is of the Burden of Proof. It contains Section 101 to 114A. The headings of section are as follows:

The expression burden of proof has two distinct meanings: 1) the legal burden i.e., the burden of establishing case and 2) the evidential burden, i.e., the burden of leading evidence.

The Legal Burden or Burden Proper:

It is the burden of proof of a matter of law and pleading, the burden and also referred as establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is the burden of party to prove its case completely to the satisfaction of the Court. It is fixed, at the beginning of the trial, by the statements of the pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever. As a rule, the legal burden lies on the party who has set in motion the legal machinery by filing a case. This rule is embodied in Section 101.

The Evidential Burden or Onus of Proof:

It is the burden of proof as matter of adducing evidence. The burden of proof in this sense is always unstable, and may shift constantly throughout the trial. This aspect of the burden of proof is contained in Section 102. It lies at first on the party who would be unsuccessful if no evidence at all was given on either side.

In Narain v. Gopal, AIR 1960 SC 100 case, the Court observed that the expression burden of proof really means two different things. It means (1) sometimes that the party required to prove an allegation before judgment is given in his favour and (2) it also means that on a contested issue one of the two contending parties has to introduce evidence.

In criminal cases burden of establishing the charge against the accused lies on the prosecution. Here it is not the accused who has to prove his innocence because he is presumed to be innocent till his guilt is proved. That is why prosecution has to prove his case and section 101 comes into operation. In civil cases burden of proof is on the party who asserts. But the standard of proof required in civil cases is not that the plaintiff must prove a fact beyond any shadow of doubt. In ascertaining which party is asserting affirmative, the court looks to the substance and not the language used.

Section 101 defines burden of proof. This section says on whom burden of proof lies. While as section 102 puts it in negative terms. The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Section 101 has to be read along with Section 102 of Evidence Act.

Section 101 IEA:

Burden of Proof:

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations:

(a) ‘A’ desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

(b) ‘A’ desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.

Thus, burden of proof means in the sense of proving the case and for this purpose, duty to prove all facts necessary for taking the judgement of court i.e., the sense of proving a case and provide whoever wishes the court to give judgement in his favour for any legal right or liability dependent on existence of some facts, law lies onus on him to prove that those facts exist.

Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. Thus, the burden of proof in the sense of proving case as contemplated in Section 101 is constant one and never shifts.

In Ramjee Rai v. State of Bihar, (2006) 13 SCC 229 case, the Court said that the word ‘burden’ in the phrase burden of proof should not be taken as weight in physical sense because the Courts do not go by quantum or volume of evidence. The Courts make a qualitative and not quantitative appreciation of evidence.

In Raigarh Jute Mills Ltd. v. Eastern Railway, AIR 1958 SC 525 case, the Court held that Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts.

In State of Rajasthan v. Bhaananda Sharma, 1972 Cri.L.J case, the Court held that it is well established principle that in criminal case the accused must be presumed to be innocent until the prosecution establishes the charge against him beyond reasonable doubt. There is no burden on the accused to prove his innocence.

In Jarnail Singh v. State of Punjab, AIR 1996 SC 755 case, the Supreme Court observed that in a criminal case, the burden of proving the guilt of the accused beyond all reasonable doubt always rests upon prosecution, and therefore if it fails to adduce the satisfactory evidence to discharge that burden. It cannot fall back upon evidence adduced by the accused person in support of their defence to rest its case solely thereupon.

In Subhra Mukherjee v. Bharat Coking Coal Ltd., AIR 2000 SC 1203 case, where issue was whether the document in question was genuine, sham or bogus. The Court held that the party who alleged it to be bogus had to prove nothing till the party relying upon document established its genuineness. This burden always keeps on shifting throughout the trial. Thus, though the form of issue may cast the burden on the defendant, it could not affect the burden of proof on the pleadings which is on the plaintiff.

Difference Between Burden of Proof and Onus of Proof:

In Addagada Ragavamma v. Addagada Chenchaamma, AIR 1964 SC 136 case, the Supreme Court held that there is an essential distinction between the burden of proof and onus of proof, the first one is the burden to prove the main contention of the party requesting the action of the court, while the second one is the burden to produce actual evidence.

Section 102 IEA:

On Whom Burden of Proof Lies:

In a suit or proceeding it lies on that person who would fail if no evidence at all were given on either side.

Illustrations:

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.

According to this Section, burden of proof lies on the party whose case would fail if no evidence were given on either side. Actually, section tries to locate on whom burden of proof lies. Section 101 of Act provide regarding Burden of proof in the sense of proving the case i.e., onus probandi and Section 102 provide burden of proof in the sense of adducing evidence.

The burden of adducing evidence keeps on shifting from one to another party. It never shifts. It remains on plaintiff in civil proceeding and on prosecution in criminal proceeding.

In K. Kusuma Kumari v. Gandhi Surya Bhagwan, AIR 1982 AP 63 case, the Court held that in cases of insanity or unsoundness of mind, burden of proving that fact lies on the person who wants to rely on it. The law presumes sanity.

In C.P. Sreekumar M.S. (Ortho) v S. Ramanujam, 1 May, 2009 the Apex Court held that onus of proving medical negligence lies on the complainant. Mere averment in complaint is not evidence. Complaint has to be proved by cogent evidence. The complainant is obliged to provide facta probanda as well as facta probantia.

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In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318 case, the Supreme Court held that in order to prove the documents original document is to be produced. Contents of it are to be proved so also signature on the same have to be proved. When document appeals to the conscious of the Court that it is genuine, contents of the same need not be proved.

In S. Ravichandra v. M/s. Elements Development Consultants, Bengaluru, 2018 Cri. LJ 4314 (Kar) case, the Court observed that mere marking of a document cannot be said to be the proof of said document. The document has to be proved in accordance with law and the same has to be appreciated in order to ascertain the genuineness of the document with other materials available on record. In that context, both the parties would get ample opportunity to counter those documents as well to submit their arguments with reference to the evidence already recorded by the court.

Section 61 IEA:

Proof of Contents of Documents:

The contents of documents may be proved either by primary or by secondary evidence.

No document can be admitted till that is established as per procedure prescribed in the act.There should be proof as to contents of document. Section 61 provides that the contents of document can be proved either.— (i) by primary evidence, i.e. by producing the document itself (Section 62) or (ii) by secondary evidence (Section 63). When primary evidence is not available secondary evidence may be permitted by the court to prove the contents of document. There is no other method of proving the contents of document.

In G. Subbaraman vs. State, 2018 Cri. LJ 2377 (Mad) case, the Court held that normally, any party who wants to prove the content of the document is required to lead evidence by production of the original document before the court through its author. Under Section 61, the original document can be presented before the Court through the author, who created the document and it can be proved.

Section 63 IEA:

Secondary evidence

Secondary evidence means and includes—

(1) certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of documents given by some person who has himself seen it.

Illustration:

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but he copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence.

Secondary evidence can be accepted by the Court for the existence, condition or contents of a document;

• when the original appears to be possession or power of the person against whom the document is to be in the possession or power of the person against whom the document is sought to be proved, or of a person not subject to the power of the Court or of any person legally bound to produce it, who has not it despite being given the required statutory notice,
• when the party offering such evidence cannot, though no default or neglect of his own, produce the original in reasonable time.
• when the original document is not easily movable,
• when the original document comprises numerous accounts or other documents which cannot be conveniently examined in Court and the fact to be proved is the general result of the whole collection.

In M.Chandra v. M. Thangamuthu, 2010 AIR SCW 6362 case, the Court said that: “It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where party is genuinely unable to produce the original through no fault of that party”

In Kalyan Singh v. Chhoti, AIR 1950 SC 396 case, the Court held that under Evidence Act five kinds of secondary evidences are mentioned. Sub sections (1), (2) and (3) mention certified copies of a document. Sub section 4 refers to counter parts of documents. Sub section (5) is concerned with the oral statement about the contents of document.

The documents obtained under RTI Act can be admitted as secondary evidence, as they are obtained under a particular enactment, which fall within ambit of by “any other law in force in India”

Certified copies:

Section 76 of the Act defines the term “certified copies”.  According to Section 76 of the Act, 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 therefor, together with a certificate written at the foot of such copy that it is a true copy of such document of part thereof, as the case may be, and such certificate shall be dated and subscribed by such document of part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

‘A’ purchased a house from ‘B’ and got registered before the Sub-Registrar of Stamps and Registration. The original registered document is primary evidence. If the original registered document is stolen or burnt in fire accident or lost in travel, ‘A’ can obtain the certified copy of the registered sale deed from the office of Sub-Registrar is a valid document, and is secondary evidence.

Copies prepared by mechanical process:

The copies prepared by mechanical process and copies compared with such copies is mentioned in clause 2 of this section. In the former case, as the copy is made from the original it ensure accuracy. To this category belong copies by photography, lithography, cyclostyle, carbon copies. Section 62 (2) states that, where a number of document are made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest, but where they are all copies of a common original, they are not primary evidence of the content of the original.

In Manorama v. Saroj, AIR 1981 All 17 case, the Court held that a photostat copy of a document is not admissible in evidence. Only certified copy is admissible.

In Suresh Banik v. State, AIR 1976 SC 1748 case, the Court held that a photostat copy of a document is admissible as secondary evidence if it is proved to be genuine. The genuineness is to be proved either by examining the photographer or by some other evidence.

In Ashok v. Madho Lal, AIR 1975 SC 1748 case, the Court held that in case of a photo copy of a document before it is admitted in evidence it has to be explained as what were the circumstances under which the photostat copy was preferred and who was in possession of the original document at the time its photograph was taken and that would be above suspicion.

State of Gujarat v. Bharat, 1991 Cr LJ 978 case, the Court held that a photograph can be proved by examining the photographer and by proving the negative.

In Surinder Kaur v. Mehal Singh (2013) case, the Court elaborating guidelines observed:

1. A photocopy of the original document can be allowed to be presented as secondary evidence only in the absence of the original document. 
2. When a photostat copy is presented as evidence, it is on the party producing it to prove that the original document existed and is lost or is in possession of the opposite party who failed to produce it. Mere assertion is not sufficient to prove it. 
3. After the photocopy is produced in the court as evidence, the opposite party must raise its objections regarding the non-existence of such circumstances or foundational facts at the earliest. 
4. When any such objections are raised, the authenticity of the copy must be determined as every copy produced from the mechanical process might not be accurate. 
5. Mere production of copy as the evidence does not amount to its proof. Its correctness has to be evaluated and proved independently. It has to be shown that it was made from the original document at a specific time and place. 
6. In instances where the photostat copy is itself suspicious, it is not to be relied upon, unless the court is satisfied that it is genuine and accurate. 
7. The genuineness of the copy is to be proved on oath by the person who made the copy or who can vouch for its accuracy, to the satisfaction of the court. 

Copies Made from or Compared with the Original:

Copies made from the original or copies compared with the original are admissible as secondary evidence. A copy of a copy then compared with the original, would be received as secondary evidence of the original. A copy of a certified copy of a document, which has not been compared with the original, cannot be admitted in evidence, such a copy being neither primary or secondary evidence of the contents of the original.

Counterparts of Documents:

A counterpart of document are primary evidence as against the parties executing them under section 62 and is secondary evidence as against the parties who did not execute it.

Oral Accounts of the :

Oral accounts of a person about the content of a document must be closely examined. Not examining the informant or not presenting the report of that person is fatal and such a person’s report cannot be relied upon in such a case. 

This is last clause enable oral account of the content of a document being as secondary evidence. The oral account of the content of a document given by a person who has merely seen it with his own eyes, but not able to read it is not admissible as secondary evidence. The word seen in clause 5 of this section means something more than the mere sight of the document, and this contemplates evidence of a person who having seen and examined the document is in a position to give direct evidence of the content thereof. An illiterate person cannot be one who has seen the document within the meaning of the section.

In Pudai Singh v. Brij Mangai, allahbad HC held that as regards the letting in of secondary evidence the word seen in this section includes read over in the case of a witness who is illiterate and as such cannot himself read it, if it is read over to him, it will satisfy the requirement of the section. But this ruling was not accepted by HC oral account of the content of a document by some person who has himself sent it. Oral account given by an illiterate person will be hearsay evidence and excluded by section 60.

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In M. Narsinga Rao v. State of Andhra Pradesh, AIR 2001 SC 318 case, the Supreme Court held that in order to prove the documents original document is to be produced. Contents of it are to be proved so also signature on the same have to be proved. When document appeals to the conscious of the Court that it is genuine, contents of the same need not be proved.

In S. Ravichandra v. M/s. Elements Development Consultants, Bengaluru, 2018 Cri. LJ 4314 (Kar) case, the Court observed that mere marking of a document cannot be said to be the proof of said document. The document has to be proved in accordance with law and the same has to be appreciated in order to ascertain the genuineness of the document with other materials available on record. In that context, both the parties would get ample opportunity to counter those documents as well to submit their arguments with reference to the evidence already recorded by the court.

Section 61 IEA:

Proof of Contents of Documents:

The contents of documents may be proved either by primary or by secondary evidence.

No document can be admitted till that is established as per procedure prescribed in the act.There should be proof as to contents of document. Section 61 provides that the contents of document can be proved either.— (i) by primary evidence, i.e. by producing the document itself (Section 62) or (ii) by secondary evidence (Section 63). When primary evidence is not available secondary evidence may be permitted by the court to prove the contents of document. There is no other method of proving the contents of document.

In G. Subbaraman vs. State, 2018 Cri. LJ 2377 (Mad) case, the Court held that normally, any party who wants to prove the content of the document is required to lead evidence by production of the original document before the court through its author. Under Section 61, the original document can be presented before the Court through the author, who created the document and it can be proved.

Section 62 IEA:

Primary Evidence:

Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1:

Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2:

Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration:

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

Section 62 of Evidence Act deals with Primary evidence.

In Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC7459 case, it was submitted that execution of documents is to be proved by admissible evidence and in a case where the document is produced and signature on the document is admitted, the document has to be read in evidence.

In P. C. Purushothama Reddiar v. S. Perumal reported in AIR 1972 SC 608 case, the Court held the Plaintiff had admitted the signature on the carbon copy, hence, there was no further burden on the Defendant to lead any additional evidence for proof of the contents of the carbon copy.

In Byramjee Jeejebhoy Private Ltd. v. Govindbhai A. Bhatte,  and Others, reported in 1994(1) Bom. C. R. 21114 it was submitted that once the factum of the execution is proved, the document stands proved and it is wholly irrelevant whether the contents are proved or not.

In Prithi Chand vs. State of Himachal Pradesh, 1989 (1) SCC 432 case, the Court held that since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore, the medical certificate was clearly admissible in evidence.

In Md. Yakub Ali vs. State of Tripura, 2004 Cri. LJ 3315 (Guj) case, where the post-mortem report is to be prepared in triplicate by pen-carbon and in the instant case also, the post-mortem report was prepared by pen-carbon in one uniform process and as such, in view of the provisions of Section 62 of the Evidence Act, such carbon copy is primary evidence.

In Surinder Dogra vs. State, 2019 Cri. LJ 3580 (J&K) case, the Court held that documents prepared under the uniform process of either printing or cyclostyle or lithography cannot be mere copies in strict legal sense of the term, in fact, they are all counterpart originals and each of such documents is a primary evidence of its contents under Sections 45 and 47 of the Evidence Act.

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Evidence and its Kinds:

According to Section 3 of the Evidence Act 1872, evidence means and includes:

• All such statements which the court allows or needs to be presented before it by the witnesses in connection to matters of fact under inquiry. These statements are termed as oral evidence.
• All such documents including any electronics record, presented before the court for inspection. These documents are termed as documentary evidence.

According to the definition given in the Indian Evidence Act, evidence can be divided into two categories:

• Oral Evidence;
• Documentary Evidence.

It should be noted that evidence can be both oral and documentary and also, electronic records can be presented in the court as evidence, which means that even in criminal cases, evidence can be presented by way of electronic records. This shall include video-conferencing.

Oral and documentary evidence can be divided into two categories:

• Direct or primary; 
• Indirect or hearsay or secondary.

There is also a category of real or material evidence, which is supplied by material objects for inspection of the Court such as a stolen good or the weapon of offense.

Oral Evidence:

Primary oral evidence is the evidence that has been personally heard or seen or gathered by the senses of a witness. It is called direct evidence as defined by Section 60 of the Indian Evidence Act. 

Section 59 IEA:

Proof of Facts by Oral Evidence:

All facts, except the contents of documents or electronic records, may be proved by oral evidence.

It is basic rule of evidence that where written documents exist, they shall be produced as being the best evidence of their own contents. Oral evidence includes all statements which the court, permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. All facts except the contents of documents may be proved by oral evidence. Contents of documents may be proved by oral evidence under certain circumstances i.e, When evidence of their contents is admissible as secondary evidence.

Section 60 IEA:

Oral Evidence Must be Direct:

Oral evidence must, in all cases whatever, be direct; that is to say—

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

In Vinod Kumar Bhutani v. State Thr. CBI on 28 May, 2013 the Court observed “in determining the admissibility of evidence the production of the best evidence should be exact” Sections 60, 64 and 91 are founded on this rule. Since witness is called an ‘eye-witness’ or ‘a witness of fact’ who has the first-hand knowledge in the sense that he perceived the fact by any of his five sources.”

The cardinal principle is that the best evidence must be given before the court. If any person is before court as a witness, should make statement about the facts of which he is having personal knowledge and experience.  According Section 60 of the Act, oral evidence must be direct or positive.

The word “must” in the section indicates the exclusion of indirect evidences including “hearsay” or derivative evidence. Where a witness gives evidence that he received information from other person and that person does not say about it, such evidence would be inadmissible being hearsay evidence.

The section, provides four methods for proving oral evidence. The evidence must be of that person who himself witnessed the happening of facts to whom he testifies.

First proviso provides for production of treatise containing expert’s opinion offered for sale, if the author of the treatise is dead or cannot found etc. (Section 32). The treatise required to be admissible must be offered for sale and the burden of proving the particular treatise is on the person who desires to give such treatise in evidence. The opinion by a living authority in a treatise as to usages and tenets of a body of men or family is not admissible under this section. Similarly, opinion of experts as expressed in treatises of person who is dead can be treated as evidence in proper case. But, using of such treatise as evidence should be made with caution when the Supreme Court explained that “every article published or a book written cannot ipso facto be regarded as conclusive or worthy of acceptance.

Second proviso requires the production of material thing (Section 45) for inspection if oral evidence refers to the existence on condition of any material thing. Secondary evidence of the contents of written document is permitted under this proviso when production of original is impracticable

Oral evidence must be consistent within itself in the sense that there are no self-contradictions and it has to be corroborate by other evidence.

Hearsay Evidence:

Hearsay evidence is that evidence which is not based upon personal vision or hearing, but based on the learning of the news through the medium of a third person: For e.g. If A sees the commission of the murder and given evidence in a court, then it is direct evidence and it is valid. If A says something to B and if B comes and given evidence in a court, then it is hearsay evidence. Hearsay evidence is not admissible.

Exception to Hearsay Rule:

There are number of exceptions to the rule of hearsay. These include:

• admission and confession section 17, 30.,
• statement of persons who are dead section 32 or cannot be found etc.,
• res gestae i.e. section 6.
• evidence in former proceedings section 33,
• entries in books of account, statement in public document, maps and charts, reputation, expert opinion and statement of experts in treaties (Proviso to Section 60).

It is therefore, said that under certain circumstances the hearsay evidence is held admissible, particularly when it “relates to the question of the credibility of witness.” The evidence of witness who heard the calling her name when her father was assaulting her mother is admissible.

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It the past the expert opinions have only been limited to medical opinions. But now with the development of forensic science and technology the scope of expert opinion is increased.  As far as, criminal law is concerned: ballistic experts, forensic experts, scientists, chemical examiners, psychiatrists, radiologists and even track-dogs are playing a very vital role in investigation of crimes and their evidence is admissible in the court of law.

Section 45 IEA:

Opinions of Experts:

When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.

Illustrations:

(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.

Section 45 of the Act enables the opinion of persons especially skilled in some science, art, foreign law, identity of handwriting and finger impressions relevant.

Defining an Expert:

The Courts in India in plethora of cases, have described that an expert is someone who has such special knowledge which need not be imparted by any University. He is a person having skill or experience in any art, trade or profession, which has been acquired by practice, observation or careful study and which is beyond the range of common knowledge. 

Such evidence cannot be considered as substantial evidence unless corroborated by other evidence. Further, the opinion of an expert is not binding on the judge. The evidence provided by him is purely advisory in nature and he shall be subject to crossexamination as well.

In Ramesh Chandra Agarwal v. Regency Hospital Ltd., 11 September, 2009 case, the Supreme Court has broadly dealt and interrupted the term Expert.

The evidence given by an expert is generally required to be given orally and a mere report or certificate by him is not evidence 5. Before an expert’s testimony can be admitted, 2 things need to be proved:

The opinion of an expert is never binding on a court. It is admitted in evidence only to help the court in arriving at a correct decision. In other words, evidence of expert cannot be taken as conclusive of fact in considering the value of the evidence of an expert it must be borne in mind that an expert witness, however impartial he may wish to be unconsciously prejudiced in favour of the side which calls him.

In State of Maharashtra v. Damu S/o. Gopinath Shinde, 1 May, 2000 case, the Supreme Court further laid down that mere assertion without mentioning the data or basis in support of his opinion is not Evidence, even if it come from an expert.

In State of Haryana v. Bhagirath, 1999 CrLJ 2898 (SC) case, the Supreme Court has held that the opinion given by expert witness need not be the last word on the subject, such opinion shall be tested by court and if opinion is not of logic or objectivity, the court is not obliged to go by that opinion.

Section 45A IEA:

Opinion of Examiner of Electronic Evidence:

When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.

Explanation:

For the purposes of this section, an Examiner of Electronic Evidence shall be an expert;]

Illustrations:

(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.

(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.

Under this Section any opinion on a matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence u/s 79A of the IT Act, will be relevant.

Section 46 IEA:

Facts Bearing Upon Opinions of Experts:

Facts not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.

Illustrations:

(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that person, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.

Section 47 IEA:

Opinion as to Handwriting, When Relevant:

When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation:

A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

Illustration:

The question is, whether a given letter is in the underwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.

Section 48 IEA:

Opinion as to Existence of Right or Custom, When Relevant:

When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.

Explanation:

The expression “general custom or right” includes customs or rights common to any considerable class of persons.

Illustration:

The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

Only persons who are likely to know about such customs in question are competent to give an opinion on them. The expert must have personal knowledge on the facts to be proved.

Section 49 IEA:

Opinions as to Usages, Tenets, etc., When Relevant:

When the Court has to form an opinion as to— the usages and tenets of any body of men or family, the constitution and government of any religious or charitable foundation, or the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts.

Section 50 IEA:

Opinion on Relationship, When Relevant:

When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).

Illustrations:

(a) The question is, whether A and B were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.

(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

Section 51 IEA:

Grounds of Opinion, When Relevant:

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

Illustration:

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

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Judgments in rem:

A judgment in rem is one pronounced upon the status of some particular person or thing and which binds all persons in the world. Thus, a judgment which binds all men, and not only the parties to the suit in which it was passed, and their privies, and that it belongs to positive law are judgments in rem. A judgment in rem is conclusive, not only against the parties to it, but also against the entire world.

Judgment of a court in exercise of probate, matrimonial, admiralty or insolvency jurisdiction confirming or taking away any legal character are judgments in rem

Judgment in Personam:

A judgment in personam or inter parties is an ordinary judgment between parties in cases of contract, tort or crime. The rights and liabilities of the parties to the suit are determined in such judgments. This judgment binds only the parties or privies to the suit. It does not bind entire world. A judgment in personam in only conclusive between the parties and privies, and it operates res judicata between the same parties on the same subject- matter. All judgments other than judgment in rem, are judgments in personam or judgments inter parties.

Section 40 IEA:

Previous Judgments Relevant to Bar a Second Suit or Trial:

The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

Where a dispute is already decided by a competent Court, and court has delivered a judgment, order or decree, and the original or certified copy of it is relevant fact under Section 40 of the Act.  A judgment, order or decree given by a competent court is conclusive evidence hence relevant.

The object of the provision is to avoid multiplicity of the suits and to save the precious time of the Court. In Civil Procedure Code Section 11 provides rule of Res Judicata and in CrPC and constitution it is provided that no one shall be punished for the same offense twice, based on the maxim nemo debet bis vexari pro una et eadem causa, i.e. rule of double jeopardy.

Ingredients of Section 40 IEA:

• There must be a dispute already decided by a competent Court;
• That Court has delivered a judgment, order or decree after conducting judicial proceedings; and
• The subject matter must be the same.

Section 40 applies to a case where the court has jurisdiction to try a suit, but one-party claims that it would not as the suit has already been decided earlier. For example, A sues B for the possession of a house, both of whom claim to be separate owners of the house. The suit is decided in favour of B, who is held to be the owner of it. After 5 years, A again files a suit against B alleging to be the owner of the house. B contends that a judgment has been given previously with regard to the same and pleads Section 11 CPC. The previous judgment will be admissible.

When the previous acquittal did not operate to bar the second trial of the accused and where both trials were separate and the incidents were viewed as distinct transactions and the offences were different thus relating to different charges, neither evidence on record nor acquittal is relevant in the second case.

A judgment in rem under this section is conclusive in a civil as well as in criminal proceeding. Both the proceedings may run simultaneously. Judgments in personam bind the parties and their representatives-in interest and not relevant under s. 41, in any subsequent proceeding.

Section 41 IEA:

Relevancy of Certain Judgments in Probate, Etc., Jurisdiction:

A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof ––

• that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
• that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment order or decree declares it to have accrued to that person;
• that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and
• that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

Ingredients of Section 41 IEA:

• There must be a dispute already decided by a competent Court;
• The judgment must be related to the matter related to probate, matrimonial, admiralty, insolvency.
• That Court has delivered a judgment, order or decree after conducting judicial proceedings;
• The judgment must confer upon or take away from any person any legal character; or declare any person to be entitled to any such character; or to be titled to any specific thing, not as against any specified person, but absolutely; and
• Such a judgment is a conclusive proof.

A judgment in rem will always be admissible irrespective of whether such judgment was between the parties or not. A judgment not between the parties is inadmissible except to prove who the parties were and decree passed and properties of the subject matter of the suit.

Section 42 IEA:

Relevancy and Effect of Judgments, Orders or Decrees, Other Than Those Mentioned in Section 41:

Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

Illustration:

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

Ingredients of Section 42:

• Judgment is not related to matter related to mention in Section 41 i.e., not related to probate, matrimonial, admiralty, insolvency; and
• Judgment relates to the matter of public nature, whether the dispute between the two same parties or not.

Matters of public nature include public customs, rights of preemptio9n, way, fisheries, ferry, drawing water from a well or pond and the matter concerning the public at large.

Section 43 IEA:

Judgments, etc., Other Than Those Mentioned in Sections 40 to 42, When Relevant:

Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.

Illustrations:

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A’s wife. B denies that C is A’s wife, but the court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife. The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him, B, is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B, C, B’s son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.

Section 44 IEA:

Fraud or Collusion in Obtaining Judgment, or Incompetency of Court, May be Proved:

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Section 44 enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. Sec. 44 gives an opportunity to the adverse party to raise questions that the judgment obtained under secs. 40, 41 and 42 by the first party in the previous suit or proceeding on the grounds mentioned in sec. 44. Sec. 44 is not applicable to sec. 43.

For Example: though the genuineness of the will cannot be challenged once the probate is issued under section 41, but the judgment can be challenged that it was obtained by fraud or collusion.

The Competency on the part of court means lack of jurisdiction. Thus, if any court without jurisdiction gives judgment on any matter it is null and void. It cannot be used as evidence as relevant.

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Judgments in Rem:

A judgment in rem is one pronounced upon the status of some particular person or thing and which binds all persons in the world. Thus, a judgment which binds all men, and not only the parties to the suit in which it was passed, and their privies, and that it belongs to positive law are judgments in rem. A judgment in rem is conclusive, not only against the parties to it, but also against the entire world.

Effect of Judgements in Rem:

Such judgment, order or decree is conclusive proof

• that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;
• that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment order or decree declares it to have accrued to that person;
• that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and
• that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 case, the Supreme Court observed: “It is well settled that a judgment in rem like judgments passed in probate, insolvency, matrimonial, or guardianship, or other similar proceedings, is admissible in all cases whether such judgments are inter partes or not”

Examples of judgment in rem:

• Judgments of Probate: Probate jurisdiction means jurisdiction of a court under the Indian Succession Act, 1925 in respect of testamentary and intestate matters. By exercising probate jurisdiction, the court can pronounce the genuineness of will of a deceased person and grant letter of probate in favour of a person who may act for the deceased in execution of his will. A judgment of a court of probate is conclusive proof and is binding on the entire world. The grant of probate is the decree of a court which no other court can set aside except for fraud or want of jurisdiction.
• Judgments of Matrimonial Matters: By virtue of this jurisdiction the court can decide the legal status of a person whether she is married or widow or divorcee. The judgment of a Matrimonial court is judgment in rem and is admissible under s. 41. A decree of nullity and divorce under Marriage Law has the same effect.
• Judgments of Admiralty: Admiralty jurisdiction is exercised by certain High Courts under the Letters Patent. An Admiralty Court decides cases arising out of war claims. The finding of a court of admiralty jurisdiction is a judgment in rem
• Judgments of Insolvency: A court having insolvency jurisdiction exercised its power under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920. Now the jurisdiction is exercised under the Insolvency Code. By exercising insolvency jurisdiction the court can determine legal status of a person whether he is insolvent or he is discharged from insolvency or annulment of his insolvency. A judgment of an insolvency court is a judgment in rem and binding on all.
• Judgments on question of legitimacy, adoption and the like matter are judgments in rem
• A judgment in a suit under Section 92 CPC binds the entire world.

Admissibility of Judgments in Rem:

Ordinarily, a judgment in a previous case will not be admissible in a subsequent case because a court has to form its own opinion depending upon the facts and circumstances of that case, whether civil or criminal. In civil cases the principles of res judicata may apply in cases between same parties. However, in criminal cases, once acquitted or convicted, he cannot be tried for the same offence again.

• A judgment in rem is of conclusive proof to show that a person had such legal character; that legal character which subsisted has ceased to exist and that the judgement had conferred such legal character.
• A judgment in rem will always be admissible irrespective of whether such judgment was between the parties or not. A judgment not between the parties is inadmissible except to prove who the parties were and decree passed and properties of the subject matter of the suit.
• A judgment which is not a judgment in rem, is not admissible in evidence against those who are neither parties to it nor derive title through such parties, as proof of the facts determined therein.
• A judgment of a Foreign Court that a particular person is an heir of another, though not a judgment in rem is binding on the Indian Courts as to the ownership of his property in India.

Judgments in Personam:

A judgment in personam or inter parties is an ordinary judgment between parties in cases of contract, tort or crime. The rights and liabilities of the parties to the suit are determined in such judgments. This judgment binds only the parties or privies to the suit. It does not bind entire world. A judgment in personam in only conclusive between the parties and privies, and it operates res judicata between the same parties on the same subject- matter. All judgments other than judgment in rem, are judgments in personam or judgments inter parties.

Examples of Judgments in Personam:

• A judgment given in a dispute arisen from a contract
• A judgment holding that A is not the adopted son of B

Distinguish Between Judgments in Rem and Judgments in Personam:

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Section 34 IEA

Entries in books of account when relevant.

Entries in books of account, including those maintained in an electronic from, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Illustration:

A sues B for Rs. 1,000, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt.

Entries made regularly in the course of business are sure to be accurate as the writer has full knowledge, no motive to falsehood and there is the strongest probability of untruth. The entries however need to be kept regularly in the course of business and are admissible in evidence if they refer to the matter in dispute. Books of account being only corroborative evidence must be supported by other evidence. If there is corroborative evidence to the entries made in the books during the course of business, the evidentiary value will be very good, however lack of the same will make such evidence have zero value. Stray entries shall not be relevant and note in a diary will not be admissible. It should be made in the books of accounts regularly kept.

In Iswar Das Jain v. Sohan Lal, AIR 2000 SC 426 case, the Court held that extracts from the books of accounts do not fall within Section 34 of the Act and such sanctity can only be attached to the accounts books as a whole, if the books are indeed accounts books.

In Prasad v. Narendranath Sen, AIR 1953 SC 431 case, the Court held that the accounts consisting of loose sheets cannot have the same force as account-books

In Y. Venkanna Chowdry v. Lakshmidev amma, AIR 1994 (Mad.) 140 case, it was observed any book of account regularly kept and entries made therein in course of business are relevant but are not sufficient by themselves to charge any person with liability where the books of account are maintained by the Managing Partners regarding which other partners made objections regarding entries and if found to vague and false, it is necessary for managing partner to adduce evidence to substantiate entries and prove its genuineness. Stray entries shall not be relevant and note in a diary will not be admissible. Unbounded sheets of paper are not books of account and cannot be relied upon.

Section 35 IEA:

Relevancy of entry in public record made in performance of duty:

An entry in any public or other official book, register or 2 [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performances of a duty specially enjoined by the law of the country in which such book, register or 2 [record or an electronic record], is kept, is itself a relevant fact.

Section 74 of the act gives a list of public documents. Commonly speaking, a public document is one which is made for the purpose of public use. It may be used and referred to by the public at their liberty. a public servant is defined in section 21 of the IPC and further reference may be made to Ss. 74 and 78 of the IEA. Entries relating to the birth and death when registered; entries made on electoral rolls are admissible. A statement made in a private book or register is not admissible under this section.

An entry to be relevant under this section needs to satisfy the following conditions:

• Must be contained in a public or other official book;
• Must be made by a public servant;
• Should be made by him in the discharge of official duty or by a person who is put under such duty specifically enjoined by the law; and
• Must state relevant facts or facts in issue

It has been held regarding proof about legitimacy of child that the Birth Certificate proceeding on the basis of Baptism Certificate, containing fact that Baptism record was read and checked before the god parents and signed by person along with god parents, such certificate is valid. Thus, Birth Certificate proceeding on basis of Baptism Certificate, legally recognised legitimate.

Section 36 IEA:

Relevancy of statements in maps, charts and plans:

 Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

Maps prepared by private persons are not under the authority of the government and are not admissible unless it is proved that the same was generally offered to the public for sale. The accuracy of such documents shall not be presumed.

Section 37 IEA:

Relevancy of statement as to fact of public nature contained in certain Acts or notifications:

When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act of Parliament of the United Kingdom or in any Central Act, Provincial Act or a State Act or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of his Majesty is a relevant fact.

This section thus makes all government acts and notifications admissible.

Section 38 IEA:

Relevancy of statements as to any law contained in law-books:

When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.

Section 39 IEA:

What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.

When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

Section 39 lays down that:

• When a statement, to be proved, is part of a longer statement or conversation or is contained in a book or is a part of a series of letters;
• The evidence shall be given of so much of the statement, conversation, document, book or series of letters;
• As the court considers necessary to the full understanding of the nature and effect of that statement and the circumstances in which it was made;
• That part which does not help in understanding the meaning of the relevant statement need not be proved.
• Only what the court finds necessary in order that the statement may be intelligible is necessary to be proved.

If some kind of evidence is debarred under the IEA, it cannot be brought on record under S. 39.

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