REG 049 Registered Documents and the Bharatiya Sakshya Adhiniyam — Law of Registration Notes for Judiciary

Registered Documents and the Bharatiya Sakshya Adhiniyam, 2023: Proof, Presumptions, Certified Copies, Secondary Evidence and Collateral Purpose

A registered document leads a double life in the law of evidence. The original stays with the party and is a private document, to be proved like any other. The copy in the register book is made and kept by a public officer in the discharge of his duty and is a public document, of which a certified copy may be had under Section 57 of the Registration Act and which proves its own contents under the Bharatiya Sakshya Adhiniyam, 2023. Most of the practical questions in this area, how a registered deed is proved, what presumptions attach to it, what to do when the original is lost, and how far an unregistered document may still be read, follow from keeping those two things apart.

The original and the register copy, the presumptions that attach, and the limits of each

1. The Transition from the Evidence Act

The Bharatiya Sakshya Adhiniyam, 2023 replaced the Indian Evidence Act, 1872 with effect from 1 July 2024. The substance of the provisions that matter for registered documents is carried over almost unchanged, but the numbering is different, and it is the numbering that has to be learnt afresh.

Subject	Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Contents proved by primary or secondary evidence	Section 61	Section 56
Primary evidence	Section 62	Section 57
Secondary evidence	Section 63	Section 58
Documents to be proved by primary evidence	Section 64	Section 59
Cases in which secondary evidence may be given	Section 65	Section 60
Notice to produce	Section 66	Section 64
Proof of signature and handwriting	Section 67	Section 65
Proof of a document required by law to be attested	Section 68	Section 67
Proof where no attesting witness is found	Section 69	Section 68
Admission of execution by a party to an attested document	Section 70	Section 69
Public and private documents	Sections 74 and 75	Section 74
Certified copies of public documents	Section 76	Section 75
Proof of documents by production of certified copies	Section 77	Section 76
Presumption as to genuineness of certified copies	Section 79	Section 78
Presumption as to documents produced as record of evidence	Section 80	Section 79
Presumption as to powers of attorney	Section 85	Section 84
Presumption as to documents thirty years old	Section 90	Section 92

2. Public and Private Documents

Section 74, Bharatiya Sakshya Adhiniyam, 2023, in substance

74(1). Public documents. The following documents are public documents: (a) documents forming the acts or records of the acts of (i) the sovereign authority, (ii) official bodies and tribunals, and (iii) public officers, legislative, judicial and executive, of India or of a foreign country; (b) public records kept in any State of private documents.

74(2). Private documents. All other documents are private, including electronic records other than the documents mentioned in sub section (1).

The original deed in the party's hands is a private document. It is the act of the parties, not of a public officer, and registration does not change its character.
The copy in the register book is a public record of a private document, and so a public document within clause (b). This is the provision that makes the whole system of certified copies work.
The endorsements and the certificate made by the registering officer under Sections 58 to 60 are the acts of a public officer, and so are public documents in their own right.
Books 1 to 5 kept under Section 51, the indexes under Section 55, and the entries made in them are all public records.

3. Certified Copies and How They Prove

Sections 57 and 60, Registration Act, 1908, in substance

57(1). Subject to the previous payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all times open to inspection by any person applying to inspect the same; and, subject to the provisions of section 62, copies of entries in such books shall be given to all persons applying for such copies.

57(5). All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.

60(2). The certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned.

1. Section 57(5) is self contained. It makes a signed and sealed copy admissible to prove the contents of the original, without more. That is a statutory shortcut, and it is the reason a certified copy from the Sub Registrar is accepted so readily in practice.

2. Sections 75 and 76 of the Adhiniyam say the same thing generally. Section 75 entitles a person having a right to inspect a public document to a certified copy, and Section 76 provides that such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

3. Section 78 raises a presumption of genuineness. The court shall presume every document purporting to be a certified copy, which is by law declared to be admissible as evidence of any particular fact, to be genuine, provided it is substantially in the form and purports to be executed in the manner directed by law.

4. But the copy proves only the record, not the truth. A certified copy establishes that a document in those terms was registered on that date. It does not establish that the recitals in it were true, that the consideration was paid, or that the executant had title or capacity.

5. Book 3, which contains wills, and Book 4 are not open to general inspection. Section 57(2) and (3) restrict access to Books 3 and 4, and Section 57(2) permits copies of entries in Book 3 to be given only to the testator during his lifetime and, after his death, to any person applying for such copies.

4. Proof of Execution of a Registered Document

Registration does not relieve a party of proving the document in the ordinary way, with one narrow exception. The starting point is that the original is a private document, and that its execution must be proved.

Section 65 of the Adhiniyam requires that a signature or handwriting alleged to be that of a person be proved to be in his handwriting, and Sections 47 and 51 of the Adhiniyam, corresponding to Sections 45 and 47 of the Evidence Act, provide for expert and non expert opinion on handwriting.
Section 67 governs an attested document. Where a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called, if there is one alive and subject to the process of the court and capable of giving evidence.
The proviso to Section 67 is the exception registration creates. It is not 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 applies where no attesting witness can be found: it must then be proved 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.

⚠ The proviso to Section 67 is narrower than it looks

Three limits should be noticed. First, it applies only where the document was registered in accordance with the Act, so a document registered by an officer without jurisdiction, or presented by a person not competent under Section 32, does not attract it. Second, it excludes a will altogether, which is why a registered will must still be proved by an attesting witness and why registration does so little for a will. Third, it ceases to apply the moment execution is specifically denied by the person by whom the document purports to have been executed, and a specific denial in the written statement is enough to revive the ordinary requirement.

5. The Presumptions That Attach

Provision	What is presumed	What it does not reach
Section 60(2), Registration Act	That the document was duly registered in the manner the Act provides, and that the facts in the endorsements occurred	The truth of the document or the validity of the transaction
Section 78 BSA	That a certified copy is genuine	That the contents of the original are true
Section 79 BSA	That a document produced as a record or memorandum of evidence is genuine and that the evidence was duly taken	The truth of the evidence recorded
Section 84 BSA	That a power of attorney executed before and authenticated by a Notary Public, Court, Judge, Magistrate, Indian Consul or Vice Consul, or representative of the Central Government, was so executed and authenticated	That the authority conferred extends to the act done, or that the principal had capacity
Section 92 BSA	Where a document purporting to be thirty years old is produced from proper custody, 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 that it was duly executed and attested	The truth of the contents; and the presumption is discretionary, expressed as "may presume"

Every one of these presumptions is rebuttable. None is a rule of substantive law.
Section 92 requires proper custody, and the explanation provides that documents are in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; and custody is proper if the origin of it is proved or the particular case renders it probable.
The thirty year presumption goes to execution and attestation, not to the truth of the recitals, and it is a presumption the court may draw and not one it must draw.
A registered document more than thirty years old therefore stands well, because it attracts both the presumption of regularity from Section 60(2) and, if produced from proper custody, the presumption under Section 92.

6. Secondary Evidence of a Registered Instrument

Sections 58 and 60, Bharatiya Sakshya Adhiniyam, 2023, in substance

58. Secondary evidence includes (i) certified copies given under the provisions hereinafter contained; (ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (iii) copies made from or compared with the original; (iv) counterparts of documents as against the parties who did not execute them; (v) oral accounts of the contents of a document given by some person who has himself seen it; (vi) oral admissions; (vii) written admissions; (viii) evidence of a person who has examined a document the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

60. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the cases there enumerated, which include where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of a person out of reach of or not subject to the process of the Court, and he does not produce it after notice; where the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved; where the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; where the original is of such a nature as not to be easily movable; and where the original is a public document within the meaning of section 74.

1. Where the original registered deed is lost, the party must first lay the foundation: plead and prove the loss, the search made, and that the loss did not arise from his own default or neglect.

2. The certified copy from the register is then the natural secondary evidence, being a certified copy within Section 58(i), and, since the register copy is a public document, Section 60 permits secondary evidence of it in any event.

3. The certified copy proves the contents, both under Section 57(5) of the Registration Act and under Section 76 of the Adhiniyam.

4. But execution must still be proved. A certified copy shows what the document said; it does not by itself show that the executant signed it, and where execution is denied the ordinary proof is still required, subject to the proviso to Section 67 and to the presumptions above.

5. A certified copy is no better than the original. If the original was inadmissible for want of registration, or for want of stamp, a certified copy of it is inadmissible for the same reason. The copy inherits every disability of the original.

6. Where the original was never registered, no certified copy exists, and the party is thrown back on the other kinds of secondary evidence in Section 58, such as a counterpart, a copy compared with the original, or oral accounts by a person who has seen it.

7. The Registration Endorsements as Evidence

Sections 58 and 59, Registration Act, 1908, in substance

58(1). Particulars to be endorsed on documents admitted to registration. On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed from time to time the following particulars: (a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent; (b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and (c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

59. Endorsements to be dated and signed by registering officer. The registering officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day.

Clause (c) is the one that carries real evidential weight on consideration. Where money is actually paid in the presence of the registering officer, that fact is endorsed, and the endorsement is evidence of the payment. Payment made elsewhere is not, and an endorsement of an admission of receipt is evidence only that the admission was made.
The endorsements prove the appearance and the admission of execution, which is the point of substance registration establishes.
They are public documents, being the act of a public officer, and are proved by the original register or by a certified copy.
Section 60(2) makes the certificate admissible to prove that the facts mentioned in the endorsements occurred as therein mentioned, which is the statutory link between the endorsements and their evidential value.

8. The Admission Before the Sub Registrar

An admission of execution made before the registering officer under Section 35 is an admission in the ordinary sense of the law of evidence, made by a party and recorded by a public officer. Its value is real but limited, and it should be placed accurately.

It is an admission of execution only, not of the contents, the consideration, the capacity or the honesty of the transaction.
Admissions are not conclusive proof, but they may operate as an estoppel, and the person who made the admission must explain it.
It is recorded by a disinterested public officer and is therefore hard to displace: the executant who later denies execution must explain why he appeared, was identified and admitted it.
A denial of execution before the officer has a different consequence. Under Section 35(3), where any person by whom the document purports to be executed denies its execution, the registering officer shall refuse to register, and the remedy is then under Sections 73 to 77.
The officer's satisfaction as to identity is not conclusive of identity. Where impersonation is alleged and proved, the endorsement records only that someone appeared and said he was the executant.

9. The Unregistered Document in Evidence

Purpose	Admissible?	Source
To prove the transfer or the transaction the document effects	No	Section 49(c)
To prove the terms of that transaction	No	Section 49(c)
As evidence of a contract in a suit for specific performance	Yes	Proviso to Section 49
As evidence of part performance under Section 53A of the Transfer of Property Act	Yes, subject to Section 17(1A) for documents executed on or after 24 September 2001	Proviso to Section 49
As evidence of a collateral transaction not required to be effected by a registered instrument	Yes	Proviso to Section 49
To prove the nature and character of possession, where that is not the main dispute	Yes, as a collateral fact	Proviso to Section 49; M/s Paul Rubber Industries v. Amit Chand Mitra, 2023 INSC 854
To prove a fact that is itself the principal question in the suit	No	M/s Paul Rubber Industries v. Amit Chand Mitra
For any purpose at all, where the document is also unstamped	No, until the duty and penalty are paid	Section 35, Indian Stamp Act, 1899

The line the proviso draws is this: a document may be read to prove a fact that could lawfully have existed without any registered instrument, and may not be read to prove the very thing for which registration was required. Severance of status may be proved from an unregistered partition deed, because severance may be brought about by a declaration of intention; the allotment of shares may not, because that is what the instrument was required to be registered to effect. The Supreme Court has recently narrowed the doctrine by holding that a fact does not become collateral merely because it can be described as the character of possession, if it is the very question the court has to decide.

10. Old Registered Documents

1. Section 92 of the Adhiniyam applies to a document purporting to be thirty years old, produced from proper custody, and permits the court to presume the signature, the handwriting and the due execution and attestation.

2. The period runs to the date on which the document is tendered in evidence, not to the date of the suit.

3. Proper custody is the crux. The explanation provides that custody is proper if the document is in the place and with the person where it would naturally be, and that no custody is improper if its origin is proved or the particular case renders it probable.

4. Registration helps twice over. The register copy establishes that the document existed on the date of registration, which puts the age beyond argument, and the certified copy comes from custody that is proper by definition.

5. The presumption does not extend to the truth of the recitals, and does not cure inadmissibility for want of registration or of stamp.

6. For an old unregistered document, the age presumption may be the only route, and even then the document remains subject to Section 49 for the purpose for which it is tendered.

11. The Position Stated Shortly

1. The Bharatiya Sakshya Adhiniyam, 2023 replaced the Indian Evidence Act, 1872 with effect from 1 July 2024, and the substance of the provisions relating to documents is carried over with new numbering.

2. The original registered deed is a private document; the copy in the register book is a public document under Section 74.

3. A certified copy under Section 57(5) of the Registration Act is admissible to prove the contents of the original, and Sections 75, 76 and 78 of the Adhiniyam say the same generally and presume its genuineness.

4. A certified copy proves the record, not the truth of the recitals.

5. Execution of a registered deed must still be proved, under Sections 65 and 67 of the Adhiniyam.

6. By the proviso to Section 67, an attesting witness need not be called for a registered document other than a will, unless execution is specifically denied.

7. A registered will must still be proved by an attesting witness, because the proviso excludes wills.

8. The presumptions under Sections 78, 79, 84 and 92 of the Adhiniyam are all rebuttable, and none reaches the truth of the contents.

9. Where the original is lost, the certified copy from the register is the natural secondary evidence under Sections 58 and 60, but a copy is no better than the original and inherits its disabilities.

10. The endorsements under Section 58 prove appearance and admission of execution, and payment made in the officer's presence under clause (c).

11. An admission before the Sub Registrar is an admission of execution alone; it is not conclusive, and it says nothing about the contents or the consideration.

12. An unregistered document is still admissible for the three purposes saved by the proviso to Section 49, but not to prove a fact that is itself the principal question in the suit.

13. Where a document is both unregistered and unstamped, the stamp bar must be cleared first, because Section 35 of the Stamp Act admits of no collateral purpose.