Documentary Evidence under the Bharatiya Sakshya Adhiniyam, 2023: General Principles, the Three Questions and Modes of Proof

Producing a document in court and having it marked as an exhibit establishes remarkably little. It shows that a piece of paper exists and that somebody handed it up. Whether it was executed by the person whose signature it bears, whether the copy corresponds to an original, and whether what it says is true are three separate questions, each proved differently, and a party who has satisfied one has not thereby satisfied the others. Keeping the three apart is the beginning of any competent handling of documentary evidence.

1. What a Document Is

The definition is wider than the ordinary meaning of the word in two respects. It is indifferent to the substance on which the matter is recorded — paper, metal, stone or a storage device — and indifferent to the means by which it is recorded, so long as the recording is intended or capable of being used to record the matter.

The Adhiniyam has expanded the illustrations considerably. Where the Indian Evidence Act illustrated the definition with a writing, printed words, a map, an inscription and a caricature, the Adhiniyam adds electronic records on emails, server logs, documents on computers, laptops and smartphones, messages, websites, locational evidence and voice mail. The expansion is not merely decorative: it settles that each of these is a document, and therefore that the whole apparatus of Sections 56 to 93 applies to it.

2. The Three Questions

Every document tendered raises three distinct questions, and each is answered by a different set of provisions.

2.1 Existence and identity — what is this thing?

Whether the document exists, what it is, and whether the paper produced is the paper in question. This is a matter of fact and is proved by oral evidence under Section 54, which permits every fact except the contents of documents to be proved orally. A witness deposes that this is the letter he received, or that this is the deed he saw executed.

2.2 Execution and genuineness — who made it?

Whether the document was written, signed, sealed or executed by the person alleged. This is governed by a distinct group of provisions.

• Section 65 — proof of the signature and handwriting of the person alleged to have signed or written a document. The signature must be proved to be in that person's handwriting.
• Section 66 — proof of an electronic signature, requiring proof that it was affixed by the person alleged.
• Section 41(1) — the opinion of a person acquainted with the handwriting, acquaintance being acquired in one of the three ways the Explanation specifies.
• Section 39(1) — the opinion of a handwriting expert.
• Section 72 — comparison by the court of a disputed signature or writing with one admitted or proved to be genuine, and the power to direct a person present in court to write.
• Sections 67 to 71 — the special rules for documents required by law to be attested, including the requirement to call at least one attesting witness, the cases in which that requirement is dispensed with, and the effect of an admission of execution.

2.3 Contents — what does it say?

What the document contains. This is governed by Sections 56 to 60 and the best evidence rule: contents are proved by primary evidence, or by secondary evidence in the cases enumerated in Section 60.

A fourth question lies beyond all three and is frequently forgotten.

3. Public and Private Documents

The classification governs how a document is proved and what presumptions attach to it, and it produces a substantial practical difference.

The second limb of Section 74 is easily overlooked. Public records kept in any State of private documents are themselves public documents. A registered sale deed is a private document, but the record of it kept in the registration office is a public record of a private document, and a certified copy of that record is admissible as a public document.

4. Attested Documents

Certain documents are required by law to be attested — a will under the succession legislation, a mortgage deed and a gift of immovable property under the Transfer of Property Act, 1882. For these the Adhiniyam imposes a stricter regime, because attestation exists precisely to guard against forgery and undue influence.

Section 67 provides that such a document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

The proviso to Section 67 provides that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.

Section 68 provides for the case where no attesting witness can be found, requiring proof that the attestation of one attesting witness at least is in his handwriting, and that the signature of the executant is in his handwriting.

Section 69 provides that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though the document be one required by law to be attested.

Section 70 provides that if the attesting witness denies or does not recollect the execution, its execution may be proved by other evidence. Section 71 deals with the proof of a document not required by law to be attested, which may be proved as if no attesting witness existed.

5. Objections — Admissibility and Mode of Proof

Objections to documents fall into two classes, and the difference decides when the objection must be taken and whether it survives.

The practical consequence is considerable and cuts both ways. A party who allows a photocopy to be marked without objection cannot complain in appeal that the foundation for secondary evidence was never laid, because the objection went to the mode of proof and the other side could have cured it by producing the original. But a party may object at any time that a document is inadmissible for want of stamp or registration, because no waiver can confer on the court a power the statute has denied it.

The two decisions operate together. The objection must be taken at the time of tender if it goes to the mode of proof; it need not be decided then, and the trial proceeds with the document marked subject to it.

6. Marking and Exhibiting

Marking a document as an exhibit is a matter of practice rather than of the Adhiniyam, but it is worth being clear about what it does and does not signify.

Marking records that the document has been tendered and received on the record. It does not decide that the document is genuine, that its execution has been proved, or that its contents are true. A document may be exhibited and later held to be unproved, or proved and later held to establish nothing.

Where a document is marked subject to objection, the objection stands preserved and is decided in the judgment. Where a document is marked for identification only, it has not been received in evidence at all and cannot be relied upon.

Three propositions follow, and each defeats an argument commonly made.

• An exhibit number does not prove a document. A party who says 'it is Exhibit P-5' has said nothing about whether it was proved.
• An unproved exhibit cannot be acted upon, and a judgment founded on a document whose execution was never proved is open to challenge.
• Proof of a document does not import proof of its contents' truth, for the reason given earlier.

7. Stamp and Registration

Two statutes outside the Adhiniyam bear directly on whether a document may be received, and both produce objections of the inherently-inadmissible class.

Stamp. An instrument chargeable with duty and not duly stamped is, under the stamp legislation, not to be admitted in evidence for any purpose by any person having authority to receive evidence. The bar is subject to the machinery for impounding the document and admitting it on payment of the duty and penalty, and where that machinery is invoked the instrument becomes admissible. An objection on this ground may be taken at any stage, and once a document has been admitted after the objection was considered, the admission is ordinarily not to be called in question at a later stage of the same suit.

Registration. A document required to be registered under the Registration Act, 1908 and not registered shall not affect any immovable property comprised in it, and shall not be received as evidence of any transaction affecting such property. The bar is subject to the proviso permitting an unregistered document to be received as evidence of a collateral transaction not required to be effected by a registered instrument, and a great deal of litigation turns on what is collateral and what is not.

8. Presumptions as to Documents

Sections 78 to 93 supply a series of presumptions which relieve a party of proving matters that would otherwise require evidence. They fall into three groups.

Presumptions as to official and public documents — certified copies under Section 78, documents produced as a record of evidence, official gazettes, maps and plans made by the authority of Government, books and charts, and powers of attorney executed before a notary or a specified officer.

Presumptions as to electronic records — gazettes in electronic form, electronic agreements bearing electronic signatures, electronic messages, and the presumptions relating to secure electronic records and secure electronic signatures. Section 90 deals with electronic messages, and it is worth noting that the provision corresponding to Section 88 of the Indian Evidence Act on telegraphic messages has been omitted from the Adhiniyam.

The presumption as to ancient documents — Section 92 permits the court, where a document purporting or proved to be thirty years old is produced from proper custody, to presume that the signature and every other part of it purporting to be in the handwriting of a particular person is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Section 92 is indispensable in title and pedigree litigation, where every executant and attestor of the documents relied upon has long since died and execution could not otherwise be proved at all.

9. The Position Stated Shortly

1. A document is anything on which matter is recorded, including electronic and digital records, and the Adhiniyam's expanded illustrations put emails, messages, server logs and locational evidence beyond argument.
2. Three questions must be kept apart — existence, execution and contents — and each is proved by a different set of provisions.
3. A fourth question lies beyond all three. Proof of a document does not prove that what it says is true.
4. Public documents are proved by certified copies and carry a presumption of genuineness; private documents must have their execution proved.
5. Attested documents require an attesting witness, and a will is the exception that survives even registration.
6. Objections to mode of proof must be taken at the time of tender; objections to inherent admissibility may be taken at any stage — R.V.E. Venkatachala Gounder.
7. Documents are marked subject to objection and the objection is decided in the judgment — Bipin Shantilal Panchal.
8. An exhibit number proves nothing. A document may be exhibited and still be unproved.

10. Related Topics and Provisions