How to prove private documents?

How to Mark a Private Document:

47. In Smt. Rekha Rana v. Smt. Ratnashree Jain [MANU/MP/0544/2005 : AIR 2006 MP 107], a Division Bench of Madhya Pradesh High Court, per R.V. Raveendra C.J., as his Lordship then was, has answered this question. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. In this context, Rekha Rana has held that a private document must be proved

i. by examining the executants of the document; or

ii. by examining a person in whose presence the signature/mark was affixed to the document; or

iii. by referring the document to a handwriting expert and examining such expert; or

iv. by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or

v. by requesting the Court to compare the signature of the executant in the document with some admitted signature of the person shown as executants; or

vi. by proving admission by the person who is said to have signed the document, that he signed it.

48. Therefore, the lessors' effort to mark the documents through the officer summoned under Order 16, Rule 15 of CPC cannot be sustained. The documents summoned may be public documents, or private documents, or a combination of both. They have come on record, but they have not yet become part of the record. So the party that summoned them must first determine which are public documents and which are private ones. As I have noted, the marking of public documents presents no problem. If the summoned documents is private, then, as held in Rekha Rana, the party must take steps to get the private document or documents marked through a proper person.

The Answers:

49. A private document cannot be marked through a person who has merely produced that document in answer to the court's summons.

50. If the objection is about the mode of proof, the party that summoned the document must ensure that it is marked through a proper person. Thus marked, the document becomes a part of the court record. But its proof is altogether a different matter. Pithily put, document marking is procedural; document proving is adjudicatory--judicial. The proof of the document-- that is, the veracity of its contents--depends, say, on the document's nature, source, the statutory presumptions it may carry with it. Even if all these aspects are satisfactory, still its relevance is yet another matter. A document emerging to be genuine still may be irrelevant for the court to adjudicate an issue before it. Thus, the proof and relevance may be tested on the touchstone of cross-examination.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5016 and 5017 of 2018

Decided On: 28.06.2019

 J.M. Constructions Vs.  Shamrock Impex Pvt. Ltd. 

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Bom HC: Document obtained under RTI can not be treated as public document if original is private document

Under RTI, usually the applicant gets photostat copies of the documents which are certified as true copies. They cannot be equated with certified copies mentioned in the Evidence Act. In other words, if the official under RTI certifies and supplies a private document, it still remains a private document. Thus, the RTI Act does not affect the nature of a document.

36. In Datti Kameswari, a learned Single Judge of the High Court of Andhra Pradesh has held that the copies obtained under the Right to Information Act certified by the Authorised Information Officer cannot be termed public documents or primary evidence. Only if the original qualifies to be a public document, then does its certified copy. But if the original is a private document, its copy secured under RTI Act does not get transformed into a public document. In that event, that certified copy of the private document must satisfy the provisions of Evidence Act for secondary evidence.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8764 of 2018

Decided On: 07.08.2019

 Kumarpal N. Shah Vs.  Universal Mechanical Works Pvt. Ltd.

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Bombay HC: Registered leave and licence agreement is not public document

 In fact, this Court, in Vithoba Savlaram v. Shrihari Narayan MANU/MH/0077/1944 : AIR 1945 BOM 319, has held that once a private document has been kept in official record with entry about their execution, say by a registering authority, that document per se does not become a public document. But the entry in the official record in relation to that document does.

41. Here the alleged registered 'leave and license agreement' still remains a private document that its registration does not cure the mischief under Section 74 of the Act. Its marking through PW1 does not amount to its proof, though. I reckon the other documents are public documents or private documents sought to be marked through PW1, from whom they originate. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8764 of 2018

Decided On: 07.08.2019

 Kumarpal N. Shah Vs.  Universal Mechanical Works Pvt. Ltd.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: AIR 2019 Bom 290: 2020(1) MHLJ 442

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Whether private document can be treated as public document if it is registered with competent authority?

The Section 74 of the Indian Evidence Act, 1872 describes which documents would form public documents. The sub-section (1) thereof provides that the documents forming the acts, or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country are the public documents whereas the sub-section (2) of Section 74 provides that the public records kept in any state of private documents are also public documents. Merely because the public records kept in the state of private documents are defined as public documents under Section 74 of the Evidence Act, that itself would not amount to contend that any document executed between two or more parties by itself would form a public document. The record pertaining to such document kept by the State though in the form of public record may form a public document, any such private document by itself cannot constitute to be a public document and it will continue to be a private document executed by the private parties. As such document would be a document enumerated under Section 75 of the Indian Evidence Act. Being so, merely because the deed of assignment is registered with the competent authority that deed itself would not partake the nature of a public document and it will continue to be a private document. A record relating to the execution of such deed maintained by the State however may be a public document bearing in mind the provision of law comprised under Section 74 of the Indian Evidence Act. Being so, the contention that the deed of assignment is a public document and therefore the petitioner would be taken by surprise by production of such document is to be rejected as being totally devoid of substance.

IN THE HIGH COURT OF BOMBAY

W.P. No. 5832 of 2004

Decided On: 20.09.2004

Purushottam alias Nana U. Sanyasi Vs. A.N. Jog and Ors.

Hon'ble Judges/Coram:

R.M.S. Khandeparkar, J.

Citation: 2005(1) Mh.L.J. 426,

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Whether certified copy of public document will prevail over private document in case of dispute?

 The Division  Bench of this Court in the
case   of  Vasudha   Gorakhnath   Mandvilkar  (supra)   in
paragraph­14 held :
"14. Consequently   whenever   there   is   a
variance   between   an   unproved   private
document   or   its   copy   and   a   certified
extract   of   a   public   record,   the   later
must   prevail   as   it   has   more   probative
value,   carrying   the   presumption   as   it
does   under   section   79   of   the   Evidence
Act.   This presumption would continue to
hold   until   it   is   rebutted.     It   can   be
rebutted   only   by   production   of   the 
original   public   record   from   which   the
extract is made out and certified to be
tried by  the relevant authority. Only if
it   is   so   rebutted,   such   certified   copy
issued by a public authority would stand
nullified." (emphasis added).
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
WRIT PETITION NO.365 OF 2012

Subhash Somla Pawar, V    The State of Maharashtra.

CORAM :     S.S. SHINDE, J.
                
  PRONOUNCED ON : 04-­02-­2013

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