Whether the court can presume that document is executed if a person admits his signature on it?

 Mulla‟s The Registration Act (supra) notes the following in relation to the meaning of “execution”19:

“Admission of Execution

…It is submitted that the mere proof or admission that a person's signature appears on a document cannot by itself amount to execution of the document...Where a person had signed a document after being aware of the nature of the document, he has executed the document, and, it is submitted, the Registrar cannot go into the question whether the document has been obtained by coercion; but when a signature has been obtained by false representations and the ostensible executant did not sign with the intention of being bound by the terms of the document, such a person cannot be said to have executed the document.”

(emphasis supplied)

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

Coram:  DR. DHANANJAYA Y. CHANDRACHUD; J., A.S. BOPANNA; J., BELA M. TRIVEDI; J.

 Civil Appeal No. 2929 of 2022;

Veena Singh (Dead) Through LR Versus The District Registrar/Additional Collector (F/R) And Another

Dated May 10, 2022

Author: Dr. Dhananjaya Y. Chandrachud, J;

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Whether recital in power of attorney that immovable property should not be sold below specific amount will invalidate sale deed?

 In other words, proceeding on the basis that the second defendant had a duty to not sell the property below Rs.55,000/-, in terms of P-1, the breach of duty to not sell below Rs.55,000/-, when the second defendant sold the property for Rs.30,000/-, cannot invalidate the sale or render it null and void. A perusal of the power of attorney will make it clear that any restriction on the price is conspicuous by its absence in the power of attorney.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

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How to prove valid cancellation of power of attorney?

 This correspondence between the plaintiff and the second defendant, in our view, would be fatal to the plaintiff’s case that the plaintiff had cancelled the power of attorney.

59. While on cancellation, we may notice that the plaintiff, in his deposition, has stated that he had cancelled the power of attorney at Mehre and there itself was the Office of the Sub-Registrar located. He has admitted that he did not get the power of attorney cancelled at the Sub-Registrar Office. Even, more importantly, he has admitted to not having sent any notice of cancellation. The only evidence consists of a statement of PW1 that the first defendant was aware of the cancellation and the statement of PW6, who had said that the first defendant was also there on 02.02.1987, when on two papers a line was drawn to signify the cancellation. The Trial Court and also the appellate court have relied upon the DX sent by the plaintiff himself, which appears to undermine the evidence about the cancellation on 02.02.1987. The High Court should not have, at any rate, disturbed the said finding in a Second Appeal. In such circumstances, the conclusion is inevitable that the case of the plaintiff that power of attorney stood cancelled, in the manner done on 02.02.1987, cannot be accepted. At any rate, we find it difficult to accept the case of the plaintiff that the first defendant, who is the third party, could be attributed any knowledge of the surrender or the alleged cancellation on 02.02.1987, even assuming for a moment that we could lend credence to the plaintiff’s version in this regard that the second defendant surrendered the power of attorney. We need not pronounce on the question whether the power of attorney being registered, it could be cancelled only by a registered power of attorney. This we say as even in the absence of a registered cancellation of the power of attorney, there must be cancellation and it must further be brought to the notice of the third party at any rate as already noticed. Such a cancellation is not made out.

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

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Whether the owner of immovable property can challenge the execution of the sale deed if the sub-registrar fails to verify the original power of attorney at the time of registration of the document?

 The second defendant, according to the plaintiff, could not execute the sale deed in the absence of the original power of attorney, and the sub registrar was supposed to verify the aspect from the second defendant under Sections 32, 33 and 34 of the Registration Act. The sale deed was without authority. The second defendant ‘was not competent to transfer the possession’. The special power of attorney is deemed to have been cancelled in the eye of law since it was handed over to the plaintiff.

25. For reasons, which we have indicated, Section 32(c) read with Section 33 and Section 34(2)(c) are interrelated and they would have no application in regard to the document presented for registration by a power of attorney holder who is also the executant of the document. In other words, there is really no need for the production of the original power of attorney, when the document is presented for registration by the person standing in the shoes of the second defendant in this case as he would be covered by the provisions of Section 32(a) as he has executed the document though on the strength of the power of attorney. To make it even further clear, the inquiry contemplated under the Registration Act, cannot extend to question as to whether the person who executed the document in his capacity of the power of attorney holder of the principal, was indeed having a valid power of attorney or not to execute the document or not.

28. Thus, the aforesaid provision deals with situations in which the Registering Authority refuses the registration. If the registering Authority is satisfied about the identity of the person and that he admits the execution of the document, it may not be a part of the Registrar’s duty to enquire further. The registration by itself will not bring the curtains down on questions relating to title to the property. The very purport of the Law of Registration is to usher in and maintain a transparent system of maintaining documents relating to property rights. It puts the world on notice about certain transactions which are compulsorily registrable Section 17 interalia. The law also makes available facility of registering documents at the option of the person (Section 18).

29. Section 57 of the Act provides for keeping Books No. 1 and 2 and the Index relating to Book No.1 open for inspection to any person applying to inspect the same. Book No.1, it must be noticed, as provided in Section 51, is a register of non-testamentary documents relating to immovable property. Book No.2 is a record of reasons for refusal to register.

32. On an analysis of the provisions, we have no hesitation in rejecting the argument of the plaintiff that the non-production of the original power of attorney by the second defendant, was fatal to a valid registration being effected. The understanding of the Courts regarding Section 18A is also erroneous. Section 18A was enacted only to ensure that the copying process is hastened, as noticed from the Objects and Reasons. 

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

AMAR NATH Vs. GIAN CHAND AND ANR.

CIVIL APPEAL NO. 5797 OF 2009

28th January 2022

Author: K. M. JOSEPH, J.

Citation: 2022 ALL SCR (ONLINE) 94

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How to calculate stamp duty payable for execution of various documents?

In the scheme of said Act, Section 3 is the charging section, which, in terms provides that subject to the provisions of said Act and the exemptions contained in Schedule-I thereto, the instruments mentioned in Schedule-I shall be chargeable with duty of the amount as indicated. This means that every instrument mentioned in Schedule-I (unless the same is exempted) would be chargeable to the stamp duty of the amount as indicated in Schedule-I. This is the general rule. Section 4 of the said Act, however constitutes a sort of an exception to the general rule contained in Section 3 of the said Act.

21. Section 4 of the said Act, inter alia, provides that where, in case of any specific instruments, i.e., development agreement, sale, mortgage or settlement, if several instruments are employed for completing the transaction, then the principal instrument only shall be chargeable with duty prescribed in Schedule-I and each of the other instruments shall be chargeable with duty of Rs.100/-instead of the duty, if any, prescribed for it in that schedule. Sub-section 2 of Section 4 of the said Act enables the parties determine for themselves which of the instruments so employed shall for the purposes of sub-section 1, be deemed to be the principal instrument. Sub-section 3 of Section 4 of the said Act provides that where parties fail to determine the principal instrument between themselves, then the officer before whom the instrument is produced may, for the purposes of this section, determine the principal instrument. The proviso to Section 4, which governs the entire Section provides that the duty chargeable on principal instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments so employed.

25. From the scheme of Section 4 of the said Act, it is clear that the same is not intended to enable the parties to an instrument, to either evade or avoid payment of proper stamp duty thereon. The provisions of Section 4 of the said Act only exempt parties from rigors of Section 3 of the said Act, which would, in the absence of provisions contained in Section 4 of the said Act, require the parties to pay stamp duty as prescribed under Schedule-I upon each of the several instruments employed in completing one and the same transaction. The limited exemption is therefore, in respect of several instruments employed in completing one and the same transaction, so long as proper duty is paid upon any one of the instruments, which may either have been determined by the parties or by the Officer before whom such instrument is produced for registration as the 'principal instrument'. Further, notwithstanding such determination by the parties or the Officer and notwithstanding the character of such principal instrument, stamp duty thereon shall be the highest duty, which would be chargeable in respect of any of the several instruments so employed for completing one and the same transaction. Upon the remaining instruments again notwithstanding their nomenclature or character, instead of payment of entire stamp duty as prescribed under Schedule-I, there would be sufficient compliance, if duty of Rs.100/-as prescribed under Section 4 of the said Act is paid in respect thereof.

26. In case of Farida Memon and ors. Vs. The Collector of Stamps and ors. Writ Petition No. 1462 of 2008 decided on 18 July 2014 upon which reliance was placed by Mr. Godbole, this Court had the occasion to observe thus:

13] From the scheme of section 4 to the said Act, it appears that the liberty granted to the parties for determining which from out of the series of instruments employed in a single transaction, shall be principal instrument, is basically for sake of convenience of the parties. However, the scheme is not to enable the parties to either evade the stamp duty or for that matter pay stamp duty upon any one of the instruments, which would bear the lowest stamp duty in the series of instruments. On the contrary the proviso, which applies to the entire section makes it clear that the duty chargeable on the instrument, so determined shall be highest duty which would be chargeable in respect of 'any of the said instruments employed'. The expression 'any of the said instruments employed' as appearing in the proviso to section 4 makes it clear that the stamp duty, even upon the principal instrument which may have been determined by the parties themselves, shall be the highest duty which would be chargeable in respect of any of several instruments used in a single transaction of either sale, mortgage, settlement or development agreement.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 9923 of 2014

Decided On: 30.01.2015

 Prasun Developers Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: MANU/MH/0111/2015,AIR 2015 (NOC) 541 Bom

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Chhatis HC: Presumption U/S 90 of evidence Act can be raised in respect of executed documents only

It would thus be seen that the plaintiffs' case rests only on the certified

copy of the sale deed which do not contain the signature or thumb

impression of any of the parties or their witnesses. Even the copy of two

sale deeds, said to be available in the records, is not stated to contain

signature or thumb impression of the parties to the transaction or the

witnesses. The parties to the transaction were not available to be examined

as they are dead. No witness has been examined. There is no other

material on record to prove execution of sale deed. There is no evidence on

record to prove that there was an intention to sell the property for

consideration either paid or promised to be paid or part paid and partly

promised to be paid. Sale deed was executed in favour of Ishrat Khan by

respective vendors named in so called sale deed dated 11.11.1932 and

19.3.1934. Thus, the plaintiffs completely failed to prove execution of sale

deed so as to transfer a valid title in favour of Late Ishrat Khan.

14.Much reliance has been placed by learned counsel for the

appellants/plaintiff on the oral evidence of Abdul Shakil (PW3) that it has

been deposed by him that as per the then prevalent practice, copy of only

those documents were retained in the office which were executed,

therefore, a presumption will have to be drawn that sale deed was

executed. We are unable to accept this submission. In the absence of there

being proof of actual execution of the document of sale, particularly when

the plaintiffs were not allowed to lead secondary evidence, the evidence of

Abdul Shakil (PW3) would not, by itself, carry such a great probative value

as to hold that a transaction of sale had taken place in which consideration

passed, transaction of sale was completed, possession transferred in favour

of late Ishrat Khan.

15.Reliance placed in the case of Kaliya (supra) is of no help because that

deals with a situation where the party has been permitted to lead

secondary evidence by allowing his application under Section 65 of the

Evidence Act. In the present case, the application was dismissed as not

pressed.

16.Section 90 of the Evidence Act would also not come to the aid of the

plaintiffs, because it does not create presumption in respect of an ordinary

copy of a document. It is only when the document is executed then only

the presumption, in particular circumstances, would be available to be

made regarding genuineness of the document in so far as execution and

attestation thereof is concerned.

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal No. 22 of 2008

 Smt. Kadir Bee, W/o Late Ishrat Khan, Vs  Smt. Mumtaj Begum, W/o Latif Miyan Musalman, 

Division Bench : Hon'ble Mr. Justice Manindra Mohan Shrivastava

Hon'ble Mrs. Justice Rajani Dubey

Dated: 20/06/2018

Per Manindra Mohan Shrivastava, J.

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Supreme Court: Witnesses To Sale Deed/Will Need Not Necessarily Know Its Contents

The main issue is whether Ratankuwarbai, who was an illiterate

lady and suffering from cancer, has executed these documents or

not. The defendants examined Antar Singh and Laxman Singh who are

witnesses to all the three documents. As far as Laxman Singh is

concerned, he clearly stated that at the time of registration of

the sale-deeds and the Will, the sub-Registrar concerned had read

out the subject matter of the three documents in short to

Ratankuwarbai. He also heard the sub-Registrar at that time. It

has been contended that both these witnesses have stated that they

were not aware of the contents of the documents, when they signed

as witnesses. The witnesses need not necessarily know what is

contained in the documents. Furthermore, when these witnesses

state that the sub-Registrar had told the gist of the documents to

the deceased then they become aware of the nature of the documents

at the time of registration thereon. In fact both Antar Singh and

Laxman Singh had deposed with regard to transfer of the

consideration.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No(s). 8827/2011

HEMKUNWAR BAI Vs  SUMERSINGH

Dated:September 25, 2019.

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Whether government is liable to pay stamp duty on documents executed in its behalf?

Section 3 in The Indian Stamp Act, 1899

3. Instruments chargeable with duty.—Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore, respectively, that is to say—

(a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in ²⁰ [India] on or after the first day of July, 1899;

(b) every bill of exchange ²¹ [payable otherwise than on demand] ²² [***] or promissory note drawn or made out of ²⁰ [India] on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in ²⁰ [India]; and

(c) every instrument (other than a bill exchange ²² [***] or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of ²⁰ [India] on or after that day relates to any property situate, or to any matter or thing done or to be done, in ²⁰[India] and is received in ²⁰ [India]: Provided that no duty shall be chargeable in respect of—

(1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument;

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Whether carbon copy of leave and licence agreement is admissible in evidence?

Relying on paragraph 5 of the Affidavit Of Examination In Chief of the Plaintiff, it was contended that the Plaintiff has specifically admitted the signature on the Leave and License Agreement and what was produced during cross examination was the carbon copy and the Plaintiff has admitted his signature thereon. Relying upon section 62 of the Indian Evidence Act, 1872, it was submitted that carbon copy was itself primary evidence and, hence, it has rightly been directed to be exhibited. It was submitted that in any case, the carbon copy would be admissible as Secondary Evidence in view of Section 63(2) and since the Plaintiff failed to produce the original despite service of notice, the Plaintiff was not entitled to oppose the production of the carbon copy.

In view of the aforesaid legal position and in the peculiar facts of this case, where the Plaintiff has himself pleaded that the document is a camouflage, once the Plaintiff has admitted his signature on the carbon copy, the document stands proved and has been rightly exhibited.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3190 of 2011 with Civil Application No. 956 of 2011

Decided On: 14.11.2011

Dinesh Vasantrai Bhuta  Vs.  Vasantben Harvilas Jani

Hon'ble Judges/Coram:

G.S. Godbole, J.

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Whether execution of document can be proved if only signature of person on document is proved?

Under Section 67 of the Evidence Act execution of document has to be proved, which denotes a conscious act of subscribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself, amount to execution of the document. It is also settled that if an illiterate person affixes his thumb mark to a document, the onus to prove that the document was properly explained to the person affixing his thumb mark so as to make him understand its true import is on the person relying on the document.

Madhya Pradesh High Court

Ramjan Khan And Ors. vs Baba Raghunath Dass And Ors. on 5 December, 1990

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Whether principles for proof of execution of documents taken from pardanashin lady is applicable to illiterate lady?

In Agadhei Malikani and another v. Abhimanyu Mallik and others, MANU/OR/0133/1968 : ILR 1968 Cut. 576, this Court held that the principles which govern the proof of execution of documents taken from pardanashin woman equally apply to the documents taken from an illiterate woman.

10. The gift deed, Ext. B, reveals that Chandrama had put her L.T.I. There is no endorsement in the gift deed that the contents of the gift deed had been read over and explained to Chandrama and after understanding the contents thereof, she put her L.T.I. Learned trial court held that it is highly inconceivable that Chandrama executed a gift deed in favour of defendant No. 1 in respect of her entire property. The gift deed had not been acted upon.

IN THE HIGH COURT OF ORISSA AT CUTTACK

S.A. No. 249 of 1988

Decided On: 30.04.2018

 Gajraj Pasayat Vs.  Debraj Pasayat and Ors.

Hon'ble Judges/Coram:

Dr. Akshaya Kumar Rath, J.

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How to prove execution of Notarized document?

The Agreement of licence is not registered as required. It cannot be looked into. Mr. Madon argued that it is notarized. It may be mentioned that notarization is not an additional qualification to give the unregistered document any extra worth. Be that as it may, even the notarization is not done as required. It does not show the number of notarial register of the notary as per the required rules. Its execution cannot even be verified and the applicant has taken no pains to get it verified.

5. The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No. XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Contents of documents, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the applicant to prove the notarization in view of the dispute. The applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not even prima facie shown to be notarized.

6. In the case of Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah and Anr. MANU/MH/0030/1992 : AIR1992Bom149 , this Court considered, inter alia, the essence of notarization of documents by persons identified before notary and the prescribed rules, more specially Rule 11 required to be followed for every notarial act. That was a case of reliance upon a copy of a document certified as true copy by the notary. That notarial act remained unregistered. The mere fact that the document was notarized was held not to lend any authenticity to the document in the absence of seeing the notarial register kept by the notary in the course of his conduct as a notary as per Rule 11 of the Notaries Rules. Evidence was led in that case. The notary was summoned. The relevant notarial register was produced. No entry was found in the notarial register relating to the transaction claimed to have taken place under the copy document notarized as true copy. The notary deposed that the executant was not before him. He had not made any entry in the notarial register as, according to him, that was not required. He was only required to verify the document, compare the document and endorse it as true copy if it was the identical copy of the original. It was observed thus:

Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof.

The contents of Rule 11, its purpose and object as well as the consequences of non-compliance of the rules have also been considered in Para-11 of that judgment. Reference has been made specially to Rule 11(2) of the rules which provides that every notary shall maintain notarial register in prescribed form No. XV and the register requires entry of every notarial act in the notarial register and taking of signature of the person concerned in the register. It is observed that negligence of the notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. Upon seeing that the notarial register did not disclose the notarial entry relating to the notarized document produced before the Court, it was held that no evidentiary value whatsoever could be attached to such a document.

7. It may be mentioned that that was a case of only a certification of copy of a document as a true copy. Our case goes much further. It is the case of the execution of the original document itself. The executant is required to be present before the notary. He is required to be identified before the notary. He is required to sign before the notary. The notary is required to witness such an act and register the transaction. Keeping in mind that the document relied upon by the applicant herein is not registered and hence is inadmissible in evidence, even the factum of the execution of the document is not even prima facie shown by the applicant upon proving the notarial act. It is for the applicant to make out his case. The prima facie case of proof of the execution of the document on a given date by the executant before the notary can be evidenced by the production of the true or certified copy of the relevant portion of the notarial register showing that the entry was made on the relevant date in the normal course of the conduct of the notary. The applicant has undertaken no exercise to substantiate his case of the execution of the document otherwise completely inadmissible in evidence. Since even the notarial act is not shown even a prima facie case cannot be made out.

8. In the case of J.G. Hegde v. R.D. Shukla MANU/MH/0786/2003 : AIR2004Bom55 , this Court once again considered the notarized writing which was styled as "Affidavit-cum-Indemnity Bond". The relevant notarial register got produced by the Court did not reveal the required entry. The purpose of Rule 11(2) of the Notaries Rules requiring every notarial act to be serially numbered in the register to be maintained by the notary was considered. The dual purpose served by such a practice was set out. It was observed that one was to identify every document with reference to the serial number and the other was to prevent execution of anti-dated documents by inserting an entry in between two successive entries which are serially numbered.

The documents which are notarized do not even show the serial number or the register number under which they are registered and entered. Nevertheless, the notary, if called upon by the executant to prove the notarization, would be bound to produce the relevant register of the relevant date. Only the production of such a register would show whether or not the document was indeed notarized on the date it is stated to be executed.

9. There have been numerous cases of anti-dated documents shown to be notarized other than the one that came up before the Court in the aforesaid two cases. Hence it cannot be put past any executant to produce the document shown to be notarized on a given date without substantiating that fact through the mandatorily required statutory procedure. No document thrown in the face of the Court as notarized document can, therefore, prevail without the accompanying notarial registration of entry. Of course, even if that is shown, the fact that the document has remained unregistered when it creates an interest in an immovable property would remain to be admissible in evidence. But at-least the Court could be satisfied prima facie about its execution. The document produced by the applicant without showing compliance of the Notaries Act and Rules bears no worth and deserves to be fully rejected.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. of 2008 in Suit No. 1094 of 2007

Decided On: 17.12.2008

H.K. Taneja and Ors. and Keshavrao J. Bhosle  Vs.  Bipin Ganatra

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Equivalent Citation : 2009 (2)MhLj 855

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Whether execution of document can be proved by proving signature on document?

 

Plaintiff has also examined the expert witness PW-3-Devendra

Parsad, the handwriting expert to establish that the family settlement

(Ex.P-1) bears the signatures of the defendant. It is the settled principle of

law that the expert evidence is only an opinion. It could just corroborate

the substantive evidence. The expert evidence cannot substantiated the

execution of the document. It is also the settled principle of law that mere

proof of signatures cannot establish the due execution of a document. So,

the expert evidence adduced by the plaintiff-appellant will not be of much

consequence to establish the due execution of the family settlement

(Ex.P-1) and to explain the suspicious circumstances surrounding it.

IN THE HIGH COURT OF PUNJAB AND HARYANA

 AT CHANDIGARH.

R.S.A No.1526 of 2014(O&M)

Date of decision : 01.12.2016

Hargursharan Singh

V

Lt. Col. Hargobind Singh

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Whether document registered on date subsequent to its execution will operate from date of execution?

 In reply to above, Shri C.A. Sundaram, learned senior
counsel appearing for the plaintiff – Respondent no.1, pointed
out that under Section 47 of the Registration Act, 1908, the
document registered on a subsequent date relates to the date
of execution. It is further submitted that since the date of
Resolution was 10.12.1994, as such there was no impediment
on the part of B.S. Narayan to exercise his powers under the
amended Para IV(i).
14. Section 47 of Registration Act, 1908 reads as under:
“47. Time from which registered document
operates. – A registered document shall operate
from the time which it would have commenced to
operate if no registration thereof had been
required or made, and not from the time of its
registration”
 In view of the above provision of law, we are in agreement
with the submission of learned counsel for the Respondent
no.1 that the document registered on a subsequent date,
operates from the date of execution, not from the date of
registration.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8895 OF 2012
Principal Secretary,
Government of Karnataka and Another 
V
Ragini Narayan and Another 
Citation:(2016) 10 SCC424
Prafulla C. Pant, J.

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How to appreciate evidence in case of execution of document by pardanashin lady?

 There is no quarrel that the plaintiff is a Paradanasin
lady. Thus, onus is on the defendants, who derived the benefits out
of the deed executed by the plaintiff, i.e., Ext.A, to prove and
establish that the document was read over and explained to the
plaintiff and thereafter, she put her signature after fully
understanding the contents thereof. Law is no more res integra on
this point. (See Nitei Sahu Vs. Chanda Bewa, reported in 30 (1964)
CLT 463 (para-6) and Brundaban Misra Vs. Iswar Swain and others,
reported in AIR 1983 Orissa 172). Mr. Pradhan, learned counsel for
the respondents submitted that the contents of Ext.A was read over
and explained to the plaintiff in Odia by the scribe and she put her
signature after being fully satisfied with the said terms and recitals.
Ext.A was admitted into evidence without any objection. Moreover,
P.W.1, the plaintiff at paragraph-6 of her deposition, has admitted
execution of Ext.A and registration thereof. She categorically
admitted in her evidence that on the date of execution and
registration of Ext.A, she had gone to the Sub-Registrar Office with
her husband, namely, Purna Chandra Paikray. However, she
deposed in her evidence at paragraph-10 that on enquiry, she found
that in order to grab the entire property, the defendant No.3 has
attempted to become the absolute owner by practising fraud and no
consideration money as indicated in the alleged deed of sale has been
paid to her. Though at paragraph-6 of her evidence, she admitted
about execution of Ext.A, but in paragraph-7, she deposed that she
does not know English and the entire fact of Power of Attorney
having not been apprised to her, she signed the same on good faith
and she was not aware of the details of said Power of Attorney. The
execution of Ext.A is not disputed by the plaintiff. She only took
exception to Clause-6 of the said Ext.A. The scribe, namely, Sri Kirti
Chandra Swain, an Advocate of Bhubaneswar, had given his 12
endorsement (as stated above), which makes it abundantly clear that
Ext.A was read over and explained to the plaintiff in Odia and she
had put her signature in the said deed being satisfied with its terms
and conditions. The plaintiff does not challenge the endorsement
given by the Scribe, Sri Kirti Chandra Swain. Further, defendant
No.3 against whom allegations have been made that he had obtained
Ext.A fraudulently, though filed his written statement did not come
to the witness box to testify his statement on oath. Thus, the stand
taken by defendant No.3 in his written statement cannot be taken
into consideration. P.W.1 (plaintiff) in her evidence has categorically
admitted that she was accompanied by her husband to the SubRegistrar
Office. Her husband is also an attesting witness to the
Power of Attorney. Thus, she had an opportunity of independent
advice in the matter. In that view of the matter, initial onus on
defendant Nos.1 and 2 to the effect that Ext. A was read over and
explained to the plaintiff and on being satisfied, she put her
signature, is duly discharged. Accordingly, the onus shifts on to the
plaintiff to prove that the contents of the deed was not read over and
explained to her. At paragraph-6 of Nitei Sahu’s case (supra), this
Court has held as under:-
“6. It must, however, be made clear that if the
plaintiff satisfies the Court, after evidence has been
gone into, that she is either a puradanashin or an
illiterate lady, then the onus would shift to the
defendants to establish that the document was read
over and fully explained to her and it was thereafter
that she put her signature after fully understanding 
the contents thereof. In many cases the burden is a
shifting one.”
14. Once the initial burden of proof is discharged by the
defendants, onus shifts and heavily lies on the plaintiff to prove her
contention as she challenges the solemnly executed registered
document as fraudulent transaction. She has to prove the
circumstances, which would establish that it was a fraudulent one.
[See Parasnath Thakur Vs. Mohini Dasi (dead) and another, reported
in AIR 1959 SC 1204] HIGH COURT OF ORISSA: CUTTACK
 RFA NO.231 OF 2009

Smt. Haramani Paikray 

V
Hadibandhu Senapati and others 
 Dated: 24.06.2016

P R E S E N T:
 SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2016 (NOC) 633 Orissa

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Precaution to be taken by court when defendant is an illiterate farmer of rural area

Whenever a dispute regarding execution of a document is raised and defendant is an illiterate farmer of rural area, Court(s) has/have to consider the matter with great caution and care so that an innocent illiterate person may not suffer for something he was not able to understand. 

Equivalent Citation: 2013(8)ADJ617, 2013 (100) ALR 621, 2013 121 RD228

IN THE HIGH COURT OF ALLAHABAD

Second Appeal No. 772 of 1979

Decided On: 04.04.2013

Tika Ram and Another

Vs.

Daulat Ram and Others

Hon'ble Judges/Coram:Sudhir Agarwal, J.

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Whether original of public document can be admitted in evidence without proving its execution in accordance with law?

The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed. It is no doubt true that it has been held by a Division Bench of this Court in the case of East India Trading Co. v. Badat & Co., that Section 114 of the Evidence Act is wide enough to permit the Court to raise a presumption not only with regard to oral evidence, but also with regard to documentary evidence. It may be mentioned that the decision of the Division Bench in the said case was reversed on appeal by the Supreme Court by a majority , but in the judgment of the majority the Supreme Court has not referred tot he point mentioned above. Apart from the undesirability of taking a view which would let in any and every document tendered by Government in suits to which it is a party without proof of genuineness, in my opinion, no presumption under Section 114 can be drawn in view of the mandatory and unqualified term of Sections 67 and 68 of the Evidence Act. Section 114 which to put it in popular language, merely empowers the Court to use its commonsense cannot be used to contravene an express provision of the Act itself. I, therefore, hold that if the original of a public document is sought to be tendered in evidence it must be proved in the manner required by law. In the result I reject the bills-cum-receipts which have been marked X-1 by me for identification and do not admit them in evidence.

Bombay High Court

C.H. Shah vs S.S. Malpathak And Ors. on 5 August, 1971

Equivalent citations: AIR 1973 Bom 14, (1972) 74 BOMLR 505, 1972MhLJ816

Bench: Vimadalal

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Whether it is necessary to explain contents of document if thumb mark is affixed by illiterate person?

 Coming to the agreement to sell (Ext. 1) both the courts below have held that the document is not genuine and is a forged one, and this finding being based on appreciation of evidence is a finding of fact. But. as much argument was advanced, I have to look to the evidence in relation to the execution of the document and its genuineness. Under Section 67 of the Evidence Act execution of document has to be proved, which denotes a conscious act of subscribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself, amount to execution of the document. It is also settled that if an illiterate person affixes his thumb mark to a document, the onus to prove that the document was properly explained to the person affixing his thumb mark so as to make him understand its true import is on the person relying on the document.

Madhya Pradesh High Court

Ramjan Khan And Ors. vs Baba Raghunath Dass And Ors. on 5 December, 1990

Bench: S Dubey

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Whether execution or authorship of a document can be proved by circumstantial evidence?

Documents can be proved like any other fact by direct as well as circumstantial evidence although the circumstantial evidence must be of sufficient strength to carry conviction.

30. In - 'S. H. Jhabawala v. Emperor' AIR 1933 All 690 (D), Sulaiman C.J. at p. 704 says as follows:

...the execution or authorship of a 'document' is a question of fact and may be proved like 'any other fact. In such a case:

(a) A document may be 'proved' as defined in Section 3 when the Court considers its existence so probable that a prudent man ought, under the circumstances, to act upon the supposition that it was written by the person alleged to be its author even though no direct proof of his handwriting is given,

(b) thus a document may be proved both: (i) by the direct evidence, and (ii) by circumstantial evidence.

31. This question was considered earlier in - 'Barindra Kumar v. Emperor' 37 Cal 467 (E) where Carnduff J. held that execution and authorship of a document is a question of fact and can be proved like any other fact and that handwriting, in addition of usual methods of proof can be proved by circumstantial evidence under Section 67, Evidence Act which prescribes no particular kind of proof. Recently the aforesaid Calcutta case appears to have been followed in - 'Gover-dhan Das y. Ahmadi Begam' AIR 1953 Hyd 181 (F) by PalnitKar and Deshpande JJ. although the report mentions - 'Ashutosh v, Nalinakshya' AIR 1937 Cal 467 (G).

32. Section 3, Evidence Act gives the definition of the term 'proved' as follows:

A fact is said to be proved when, after considering the matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." Section 67, Evidence Act lays down:

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

33. Reading the two sections together it is clear that Section 67 does not lay down any specific mode of proof and circumstantial evidence, as a mode of proof of authorship or execution of documents, is not excluded.

Madhya Pradesh High Court

Krishnabiharilal vs State on 8 December, 1954

Equivalent citations: 1956 CriLJ 233

Bench: Nevaskar, Chaturvedi, A Khan

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Whether execution of a document can be proved by circumstantial evidence?

 The execution or authorship of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence, although it must be further premised that the circumstantial evidence must be of sufficient strength to carry conviction. It has been further laid down that Section 67 does not lay down any specific mode of proof, and therefore, circumstantial evidence as a mode of proof of authorship or execution of documents is not excluded as a legitimate method of proving a document and such evidence may consist of the internal evidence contained in the document itself about the execution of which there is a dispute and the oral evidence of the witnesses to prove other surrounding circumstances. See Krishnabiharilal v. State, (AIR 1956 Madh Bh. 86) and Karali Prosad v. E. I. Rly. Co., (AIR 1928 Cal 498).

Rajasthan High Court

Govind Ram vs Abdul Wahab on 18 April, 1963

Equivalent citations: AIR 1963 Raj 234

I.N. Modi, J.

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