Delhi HC: The expression "the matters before it" in the definition of "proof are wide enough to cover matters which are not "evidence" as defined in the Act

 "13. Section 3 of the Indian Evidence Act, 1872

13.1 Proof: 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. "Evidence" of a fact and "proof" of a fact are not synonymous terms. "Proof", in the strict sense, means the effect of evidence.

13.2 Section 3 defines the expressions 'proved', 'disproved', and 'not proved' as under:-

"Proved" 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.

"Disproved" A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

"Not proved" A fact is said not to be proved when it is neither proved nor disproved.

13.3 Meanings of term "the matters before it"

The expression "the matters before it" in the definition of "proof" are wide enough to cover matters which are not "evidence" as defined in the Act. For instance, a fact may be orally admitted in the Court. The admission would not come within the definition of the word 'evidence' as given in this Act, but still it is a matter which the Court would have to take into consideration in order to determine whether the particular fact was proved or not. The Court is thus entitled to take into consideration all the matters before it which shall include the statement of the witnesses, admissions of the parties, confession of the accused, documents proved in evidence, judicial notice, demeanour of witnesses, local inspections and presumptions.

IN THE HIGH COURT OF DELHI

Mac. App. 1114/2017

Decided On: 28.09.2018

Suman Devi and Ors. Vs. Mahesh Arora and Ors.

Hon'ble Judges/Coram:

J.R. Midha, J.

Citation: MANU/DE/3807/2018.

Read full Judgment here: Click here.

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Whether landlord can claim rent towards lock-in period without pleading that he has sustained loss due to premature vacation of premises?

The reason why I state that the suit as per averments in the plaint itself was not maintainable and should not have been entertained is, that the plaintiff, though pleading breach of contract i.e. Lease Deed and the Maintenance Agreement by the defendant and without pleading any loss from such breach, is seeking relief in the nature of specific performance and which is not permissible in law. The Lease Deed was not specifically enforceable at the instance of the plaintiff as the landlord and on breach of the Lease Deed by the defendant as tenant, by vacating the premises before expiry of the term thereof, the plaintiff was entitled to only damages for breach of contract and the measure of which damages was the loss if any suffered by the plaintiff. However, the plaintiff was required to plead such loss and no loss has been pleaded.

11. The position with respect to rent of lock-in period is akin to that of earnest money/security and qua which the Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority MANU/SC/0019/2015 : (2015) 4 SCC 136, followed by me in Speed Track Cargo Vs. State Bank of Patiala MANU/DE/0359/2016, Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders Pvt. Ltd. MANU/DE/3533/2017, Mera Baba Pvt. Ltd. Vs. Ram Lubhaya Puri MANU/DE/2199/2018, Klintoz Pharmaceuticals Pvt. Ltd. Vs. Ravinder Shankar Mathur MANU/DE/3733/2018, Satish Verma Vs. Garment Craft (India) Pvt. Ltd. MANU/DE/7859/2017 and Mahendera Verma Vs. Suresh T. Kilachand MANU/DE/2352/2019, held that mere entitlement in the agreement to forfeit is not enough and loss/damages from breach of contract has to be proved. In fact, the matter is no longer res integra. The Division Bench of this Court in Tower Vision India Pvt. Ltd. Vs. Procall Pvt. Ltd. MANU/DE/4958/2012 has held that rent of the lock-in period in a Lease Deed cannot be claimed without pleading loss from vacation by the tenant of the property prior to the expiry of the term of lease. 

IN THE HIGH COURT OF DELHI

CS (OS) 3032/2014

Decided On: 06.01.2020

 Deepak Chopra  Vs.  Flakt (India) Pvt. Ltd.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether plea of exemption from rent law is to be specifically pleaded and proved?

 Lastly, it may be pointed out that in the present case, the suit was filed in 1980. Section 2(7)(bb)(iii) was amended in 1994. Under the said Amendment, the expression "under the management of the State Government" stood deleted. Therefore, it was argued on behalf of the appellant that the Karnataka Rent Control Act 1961 has no application. As held by the High Court this plea was not taken by the appellant in the Courts below. Further, Section 2(7)(bb)(iii) states that the Act will not apply to any premises belonging to a religious or charitable institution. However, there is no material placed on record by way of pleadings to show whether the appellant is a religious or charitable institution. The plaint was never amended. The appellant seeks exemption. Exemption needs to be alleged and proved. Opportunity is required to be given to the respondent to meet the plea of exemption. In the circumstances, we are in agreement with the view expressed by the High Court that the said plea was not open to the appellant at the stage of second appeal, particularly in the absence of any material available to substantiate such plea.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4122 of 1999

Decided On: 22.07.2004

Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust

Vs. S.K. Viswanatha Setty

Hon'ble Judges/Coram:

Ashok Bhan and S.H. Kapadia, JJ.

Citation: (2004) 8 SCC 717,AIR 2004 SC 3929

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Whether document can be treated as proved if it is produced in consequence of notice to produce document?

Section 163, Evidence Act reads as under : --

"163. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so."

The ingredients of the provision are :

(i) One party having given the other a notice to produce must call for that document;

(ii) Such document should be produced by such other party;

(iii) the party calling for the document must have inspected it.

When the abovesaid three steps have been followed the party calling for the document would be bound to give it a evidence on the party producing the document insisting on doing so.Section 163 of the Evidence Act has to be read along with Section 164. The two read together project the object underlying. If a party called upon to produce a document in his custody fails to produce the same, he would be debarred from producing that document as evidence unless the other party waives the right accrued to him or the Court still permits the production. On the contrary, if the party in possession of the document yields to the call of his opponent not only by producing the document but also by offering its inspection, the party calling for the document, cannot be permitted to turn around object to the production of that document in evidence. This appears to be a simple rule of fair trial between the two adversaries before a Court and nothing more. Be it noted that the two provisions enact a rule of evidence and not a principle of proof.

Distinction between evidence and proof is well defined and perceptible. It will be useful to read the definition of the term 'evidence' with reference to documents and the definitions of the terms 'proved', 'disproved' and 'not proved' in Section 3 of the Evidence Act.

'Evidence' means and includes

xxx xx

(2) all documents produced for the inspection of the Court;

Such documents are called documentary evidence.

'Proved'

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.

'Disproved'

A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

'Not proved'

A fact is said not to be proved when it is neither proved nor disproved.

Section 163 of the Evidence Act read in the light of the definition of the term 'evidence' leads to certain inferences. A party man call for production of a document in the custody of his opponent and may also inspect the same. Till that stage, the document remains a 'document' and does not become an 'evidence'. It is only when a document is produced for inspection of the Court that the 'document' becomes 'evidence'. The party calling for the document may have several weapons in his armoury utilising which it can prevent the other party's document from becoming evidence. All those weapons can be utilised at all times until all the three steps contemplated by Section 163 of the Evidence Act have been put in. A party may call for a document but the opponent may not produce. The opponent having produced the document, the party making the call may still be advised not to inspect. Till this stage the party is not debarred from objecting to other party's documents becoming evidence, if it can. But having inspected the document, the party would be debarred from objecting to the attempt of other party in tendering that document in evidence or in other words from producing that document for the inspection of the Court. However, that does not mean that if the law bars admissibility of a document than merely on account of production and inspection of the document between the parties, it would become admissible. For example, if a document is required by law to be registered to be scribed on stamp paper of a particular denomination, which it is not, a mere product ion for and inspection by adversary of the document would not make it admissible in evidence. Similarly, Section 163 of the Evidence Act does not speak of relevancy of the document. A document may be admissible in evidence and yet be not relevant. Then, a document may be required by law to be proved in a particular mode, such as a will is required to be proved in accordance with Section 68 of the Evidence Act. In a disputed case of will, if the party disputing the will propounded by his opponent, has called for and inspected the will, it would not mean that the opponent would be absolved of his responsibility of proving the will in the manner required by Section 68 of the Evidence Act.

Evidence in relation to law includes all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation. This term and the word proof are often used as synonyms, but the latter is applied by accurate logicians, rather to the effect of evidence, than to evidence itself (Taylor 11th Ed., p. 1). The definitions of the words 'proved' 'disproved' and 'not proved', embodiment of sound rule of common sense, would be described the degree of certainty to be arrived at before the fact can be said to be proved, disproved and not proved by evidence. In short, proof is the effect of evidence. It is this background which assumes significance as to why the draftsman of the Evidence Act deliberately abstained from using the term 'proof' in any of its variations in the language of Section 163 of the Evidence Act.

A few decided cases may now be noticed.

In Rajagopala Ayyangar v. Ramanuja Ayyangar 72 Ind Cas 459 : (AIR 1923 Mad 607), a Division Bench of Madras High Court observed :

"Section 163 of the Evidence Act does hot render proof of the documents to be exhibited unnecessary or alter the normal incidents of that burden.....it includes nothing relating to the burden of proof or the necessity for the proof prescribed in the other Sections of the Act."

In Ramadhin v. Ram Dayal 57 Ind Cas 973 : (AIR 1919 Oudh 8), it was held :--

"Where documentary evidence is admitted under the special provisions of Section 163 of the Evidence Act, such evidence is merely evidence in the case for what it may be worth, and is not conclusive against the party who has inspected the documents."

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

C.R. No. 86 of 1989

Decided On: 26.09.1989

 Phoolchand Garg Vs. Gopaldas Agarwal and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti, J.

Citations: AIR 1990 MP 135

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Whether bonafide purchaser can be granted compensation for improvement made by her in absence of pleading and proof?

Under provisions of Section 51 of the said Act, a person making improvements in the property should have acted believing in good faith that he is absolutely entitled to the property. What actions are taken believing in good faith would depend on the facts of each case and hence, the importance of necessary pleadings in that regard. A general belief that the party was a bona fide purchaser for valuable consideration without any further details would not suffice the requirements of making out a case for grant of compensation under Section 51 of the said Act. Hence, the absence of pleadings that the defendant No. 3 believed in good faith that she was absolutely entitled to the property is a big handicap in her effort to seek compensation under Section 51 of the said Act.

9. The evidence on record led by the defendant No. 3 who was the purchaser of the suit property indicates that before executing the sale deed in favour of the defendant No. 3, no public notice came to be issued. It was also admitted that neither he nor the defendant No. 3 were present when the sale deed was executed. He further admitted that after receiving the telegram at Exhibit-52 from the plaintiff, no attempt was made to contact the plaintiff nor was any enquiry made in the office of the Sub Registrar with regard to the plaintiff's sale deed.

10. In Bajrang @ Hanumant Tatyaba Kakade (supra), the test that has to be applied to find out if the purchaser acted bona fide and took reasonable care and caution in making enquiry into the title of the property has been referred to. In paras 5 and 6 of said decision, it has been observed thus:

"5............................................................ The oft quoted and well known passage is reiterated in Bailey v. Barnes, (1984) 1 Ch. 25, 35 which aptly describes the obligation of the vendee before the purchase and that reads thus :

"A purchaser of property is under no legal obligation to investigate his vendor's title. But in dealing with real property, as in other matters of business, regard is had to the usual course of business; and a purchaser who wilfully departs from it in order to avoid acquiring a knowledge of his vendor's title is not allowed to derive any advantage from his wilful ignorance or defect which would have come to his knowledge if he had transacted his business in the ordinary way."

6. The aforesaid is the test which has to be applied to find out whether the purchaser acted bona fide and took reasonable care and caution in making usual enquiry into the title. If he succeeds in showing that even if he had transacted the business in ordinary way he was not in a position together that there was none other owner than the vendors, then, such vendee could be described as bona fide purchaser. On the other hand, if while transacting the business in the ordinary way the vendee would have come to know that there were owners other than the vendor, it cannot be said that such vendee has acted bona fide".

If the evidence led by the defendant No. 3 is tested on the aforesaid touchstone, the same falls short for holding that the defendant No. 3 had acted believing in good faith and had taken reasonable care and caution before purchasing the property.

11. The plea as raised by the defendant No. 3 with regard to absence of mutation entries in the name of the plaintiff cannot further her case inasmuch as the mutation entries are taken for fiscal purposes and cannot be treated as documents of title. Merely on the ground that the plaintiff had not got any mutation entry made in her favour pursuant to purchasing the suit property would not dispense with the necessary enquiries that are required to be made by a purchaser who believes in good faith that he is absolutely entitled to the same. The expressions "believing in good faith" and "absolutely" entitled indicate the nature of enquiries required to be undertaken by a purchaser who seeks to rely upon the provisions of Section 51 of the said Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 317 of 2014

Decided On: 31.07.2017

Maya Namdeorao Kharodkar Vs. Bhagyashree Pramod Dave and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(1) MHLJ 150

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Whether permission to adduce secondary evidence amounts to proof of that document?

 As regards the authority relied upon by learned counsel for the Petitioner in the case of H. Siddiqui (Dead) by LRs. v. A. Ramalingam, 2011 (2) ALL MR 938 (S.C.), it can be seen that, the said Judgment deals particularly with the proof of secondary evidence. It was held that, “mere admission of a document in evidence does not amount to its proof and the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon”. Here in the case, the Trial Court itself has specifically observed in paragraph No. 7 of its order that, “merely because Respondent No. 1-Plaintiff is permitted to lead secondary evidence regarding the letters claimed to be sent to the Defendants, it will automatically not proved that the letters were received by the Defendants and the burden lies on the Plaintiff to establish its case and the Defendant will get opportunity to cross-examine the witness of the Plaintiff on this aspect”.

10. Therefore, this Judgment cannot be of any help to the Petitioner, as in this case, by the impugned order, only the production of secondary evidence is allowed. Whether those documents are to be exhibited or admitted in evidence, that issue is kept open by the Trial Court also and it will be decided in the course of the trial.

In the High Court of Bombay

Civil Appellate Jurisdiction

(Before Shalini Phansalkar-Joshi, J.)

Rajendra Mahadev Todkar, 

v.

 M/s. Paranjpe Schemes (Construction) Company Limited, 

Writ Petition No. 1385 of 2017

Decided on January 5, 2018

Citation: 2018 SCC OnLine Bom 15 : (2018) 2 AIR Bom R 91

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Whether Last seen evidence is admissible if it has not attained status of proof?

While motive is not necessarily of the essence in a case of direct evidence, it attains significance in a case of circumstantial evidence particularly when the other circumstances have not been proved beyond reasonable doubt. In the present case, the ‘last seen’ evidence cannot be vouched for particularly because the two accused were not last seen with the deceased at the place where the dead body was ultimately found.

27. In Arvind @ Chhotu v. State ILR (2009) Supp. (1) Delhi 704, this Court observed as under:

“106. Thus, the circumstance relatable to the place, where the deceased was last seen in the company of the accused as also the circumstance of the place where the dead body was found does not rule out anything happening involving a third person. Thus, howsoever suspicious may be the evidence of last seen, the same has not attained the status of proof.”

28. In this case too, it may be observed that even though the evidence of ‘last seen’ may give rise to suspicion, it has not attained the status of proof.

In the High Court of Delhi at New Delhi

(Before S. Muralidhar and I.S Mehta, JJ.)

Crl.A 360/2002

Chhatar Pal v. State 

Crl.A 360/2002 and Crl.A 721/2002

Decided on January 18, 2018

Citation: 2018 SCC OnLine Del 6678

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Whether court can grant eviction decree on ground of non user of premises without pleading and proof in that regard?

 Reverting to the ground of non user under section 13(1)(k) of the Rent Act, it is true that the Appellate Court has recorded a finding of fact that the suit premises were not being used for a period of six months immediately preceding the date of institution of the suit. However, what is relevant to note is that Appellate Court has held that there was no pleading in the plaint that the demised premises were kept closed for more than six months by the respondent-tenant "without any reasonable cause". The Court below was right in placing reliance on the decision of the case of C.R. Shaikh v. Lilabai D. Rohida and another, reported in 1981 Mh.L.J. 437 that if there is no pleading in that behalf then it is incomprehensible that the plaintiff can be said to have made out a cause of action against the tenant to invoke that ground. The learned Counsel for the respondent has also placed reliance on the case of Shri Cyrus Behram Irani and another v. Shri Parvis Burjorji Engineer (since deceased by his heir) deft. No. (1) Dinoo Parviz Engineer and another, reported in 1991 Mah.R.C.J. 158, which has taken the same view. Accordingly, having regard to the admitted position from the record that the petitioners did not plead nor adduce any evidence to even suggest that the demised premises were kept locked for more than 6 months by the respondent-tenant "without any reasonable cause" as has been observed by this Court in the above said decision, no cause of action would arise to invoke that ground. No doubt, the onus on the landlord with regard to the factum of non user of the suit premises "without reasonable cause" is very light, but nonetheless the landlord has to allege that fact only when the provisions ofsection 13(1)(k) can be said to have attracted. Suffice it to point out that no pleading nor any evidence in that behalf is forthcoming from the landlords and, therefore, no fault can be found with the courts below in rejecting the decree on that ground.

Bombay High Court

Ashok Vithal Chavan And Ors vs Baburao Sakharam Bhagat on 19 June, 2002

Equivalent citations: 2002 (6) BomCR 736

Bench: A Khanwilkar

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Whether plaintiff can prove his title on basis of sale deed if there is no pleading regarding sale deed in plaint?

From the above, it is clear that Sub Divisions

188/1,   188/2   &   188/3   were   in   existence   at   least

since before 1983. The deeds on which the reliance

has   been   placed   by   the   plaintiff   i.e.   Sale   Deed

dated 28.08.1992, by  which  Padmanabhan  is said  to

have  transferred  the  property in  favour  of  Sanjay

Ramasamy as well as General Power of Attorney dated

31.10.2007   and   Sale   Deed   dated   04.11.2007   in   the

name   of   plaintiff,   the   suit   property   is   not

described by sub division rather it is mentioned as

part of Plot No. 188. Although, plaintiff got his

plaint amended by amending part of Plot No. 188 as

Survey No. 188/3 but Sale Deed being not for Survey

No. 188/3, both the trial court and the Appellate

Court have rightly come to the conclusion that the

plaintiff   failed   to   correctly   describe   the   suit

property   and   it   cannot   be   accepted   that   deeds

claimed by him referred to the suit property.

23. Learned   counsel   for   the   respondent   has   laid

much emphasis on the Deed dated 29.7.1974 executed

by Sundara Rajan in favour of Padmanabhan which has

been   brought   on   the   record   of   paper   book   at   page

No.104. Learned counsel submits that said sale deed

clearly   proves the title of Padmanabhan over 2.79

acres   of   Survey   No.188.   The   said   deed   has   been

filed by the plaintiff­respondent as Exhibit A­14.

The   Deed   dated   29.7.1974   has   been   specifically

considered   by   the   trial   court   in   para   9   of   the

judgment.   The   trial   court   has   in   its   judgment

noticed   that   plaintiff   came   with   the   case   in   the

plaint   that   suit   property   was   inherited   by

Padmanabhan, however, he relied on Exhibits A­12 to

A­14 with regard to which there was no pleading in

the  plaint.  In  his  deposition,  PW.1  admitted  that

“it is correct to say that without disclosing this

deed in the plaint I filed Exhibits A­12 to A­15”.

When there  was no pleading in the plaint regarding

title   of   Padmanabhan   by   any   other   earlier   deed

except   the   claim   of   inheritance   the   trial   court

rightly  discarded the Deed  dated  29.7.1974.  It  is

further   relevant   to   note   that   plaintiff's

application made for amendment of the plaint in the

Appellate Court was considered and rejected by the

Appellate Court. The evidence, with regard of which

there is no pleading, has rightly been discarded by

the   trial   court.   Unless   there   is   a   pleading

especially with regard to the source of title, the

defendant   of   a   suit   has   no   opportunity   to   rebut

such pleading thus an evidence with regard to which

there   is   no   pleading   can   not   be   relied   by   the

plaintiff   for   setting   up   his   title   in   a   suit.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2342 OF 2017

EXECUTIVE OFFICER, ARULMIGU       

CHOKKANATHA SWAMY KOIL TRUST 

VIRUDHUNAGAR    

   V

CHANDRAN & ORS  

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Whether court can direct that his orders be read along with pleading,proof and other data on record?

 Learned District Judge in his order dated November 3, 2000 noticed in para 3 that the plaintiff was owner of two trucks HP 12-2209 and HP 11-4009 and had deployed these trucks with defendant No. 2 for lifting the clinker from GACL Complex since April, 1997. Learned District Judge in his impugned order observed that the order passed by him has to be read along with the pleadings, proof and other data on record in the suit itself and the operative part of the order, though does not refer to particular registration number of the trucks, however, identity of these three trucks was to be found in the suit laid by the plaintiff and therefore, it was not open for the defendants to say that as registration numbers of the trucks were not given and, therefore, not bound to comply with the orders.

25. In our view, the reasoning given by the learned District Judge is fallacious and cannot be accepted. When an order is passed by the Court, it is not open to a party to go behind the order, by looking into the pleadings together the intention of the Court or mind of the Presiding Officer, to comply with the orders of the Court, particularly when any non-compliance entail punitive consequences. 

IN THE HIGH COURT OF HIMACHAL PRADESH

F.A.O. Nos. 319 and 426 of 2001

Decided On: 08.01.2003

 Sushil Mittal and Anr. Vs. R.D. Bhardwaj and Anr.

Hon'ble Judges/Coram:
Kamlesh Sharma, Actg. C.J. and K.C. Sood, J.

Citation: 2004(1) Civil court cases341 HP

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When certified copies of police papers can be read in evidence without additional proof?

In this case the petitioners have produced
 certified copies of the F.I.R., spot panchanama and
 inquest panchanama. Since they are certified copies,
 they can be read in evidence without any additional
 proof. Those are public documents. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO. 1618 OF 2007
 United India Insurance Co. Ltd.V Sayaji s/o. Masuji Shinde

CORAM : P.R. BORKAR, J.

PRONOUNCED ON : 04.08.2008 
Citation:2009 (3) MHLJ539

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How to appreciate evidence of proof of execution of will?

 The respondent/defendant no. 1 in his own evidence has identified the signatures of the mother Smt. Devki Devi Rode on the said Will. I do not find any bar to the signatures of the executant of a Will being proved by the propounder of the Will. A Division Bench of this Court recently in Subhash Nayyar Vs. Registrar, University of Delhi MANU/DE/0246/2013 concurred with the decision of the Madras High Court in Jambunatha Iyer Vs. Sankari Ammal MANU/TN/0735/1993 laying down that though Section 69 requires fulfillment of two conditions but the emphasis therein is on fulfillment only of the condition of proof of attestation by one of the attesting witnesses and which when proved is evidence of everything upon the face of the instrument since it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place. It was further held that Section 69 nowhere prescribes that both requirements have to be fulfilled by the same witnesses and the propounder of the Will can identify the signatures of the executant.

26. As far as the aspect of proof of neither of the attesting witnesses being found is concerned, the contesting respondent/defendant no. 1 has deposed having personally visited the address of the other attesting witnesses mentioned under his signatures on the Will and the said attesting witness being not found thereon and new address not being available with any of the neighbours also. Not a single question was put to him in cross examination on the said aspect. The inference in law from non-cross examination of a witness on a particular aspect of his deposition is well settled i.e. that the cross examining party is deemed to have accepted the said part of the deposition. Reference in this regard can be made to Laxmibai (Dead) Through LR's Vs. Bhagwant Buva (Dead) Through LR's MANU/SC/0072/2013 : (2013) 4 SCC 97, Rajinder Pershad (Dead) by LR's Vs. Darshana Devi MANU/SC/0453/2001 : (2001) 7 SCC 69 and judgment dated 19th September, 2013 in RFA No. 411/2000 titled Chanchal Dhingra Vs. Raj Gopal Mehra. The learned Addl. District Judge is thus clearly in error in holding the contesting respondents/defendants no. 1&2 to have not proved that no attesting witness to the Will was to be found.

27. As far as the testamentary capacity of the mother Smt. Devki Devi Rode is concerned, merely from the factum of old age and her suffering from cancer it cannot be presumed that she lacked testamentary capacity; the Will was executed in 1994 but she fell ill with cancer only in 1996. It is for a person challenging a Will to not only plead but prove that the testator/testatrix lacked testamentary capacity but also to give specific reasons therefor. Admittedly there are no pleadings of the lack of testamentary capacity of Smt. Devki Devi Rode. The wife of the appellant/plaintiff appearing as a sole witness on his behalf in her affidavit by way of examination-in-chief did not even utter a word of Smt. Devki Devi Rode not having testamentary capacity. In her cross examination she admitted the photograph on the registered Will to be of Smt. Devki Devi Rode. In her cross examination also, nothing came out challenging the testamentary capacity.

28. I am of the view that in the absence of any challenge to the testamentary capacity, the Will cannot be disbelieved on that ground. Rather in the cross examination of the contesting respondent/defendant no. 1 it has come to light that Smt. Devki Devi Rode at the time of execution of the Will was able to walk and she used to read newspapers. No further cross examination was done on the said aspect. To hold that a Will can be disbelieved on the ground of lack of testamentary capacity without even the person propounding the Will being put to notice of such challenge, would be contrary to the basic principles of natural justice. The Supreme Court in Niranjan Umesh Chandra Joshi Vs. Mrudula Jyoti Rao MANU/SC/8788/2006 : (2006) 13 SCC 433 has held that there exists a distinction where the suspicions are well founded and cases where there are only suspicions and that existence of suspicious circumstances alone may not be sufficient and the Court may not start with a suspicion and a resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion. Even otherwise in the preponderance of probabilities I am inclined to believe the said Will.

IN THE HIGH COURT OF DELHI

RFA 765/2006

Decided On: 25.10.2013

 Surender Rode Vs.Madan Mohan Rode and Ors.

Hon'ble Judges/Coram:Rajiv Sahai Endlaw, J.

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Whether divorce can be granted on ground of desertion in absence of pleading and proof?

 Considering the case in hand and on appreciation

of the evidence, it is seen that the actual desertion as

stated by the husband is not pleaded with the statutory


period mentioned under Section13(1)(ib) of the Act. The

animus deserendi or intention to desert and the factum

of separation which are the two essential elements to

constitute desertion are not properly found in the alleged

desertion. Even though there was factum of separation,

their rejoining after filing the petition shows that they

have no intention to bring the cohabitation permanently

to an end. This shows that the petitioner husband failed

to prove the ground of desertion and the judgment of the

lower court on the ground of desertion is to be set aside.

No decree of divorce could be granted on the ground of

desertion in the absence of pleading and proof with

regard to mental element and physical element.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

               MR.JUSTICE V.K.MOHANAN
                                  &
                MR. JUSTICE P.D.RAJAN

      WEDNESDAY, THE 11TH DAY OF FEBRUARY 2015

                   Mat.Appeal.No. 244 of 2007 ( )
                  

       C.V.USHAKUMARI, 
Vs
       P.SUKUMARAN,
     Citation; AIR 2016(NOC)50 Kerala

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Whether unregistered partition deed can be used for collateral purpose if it is not properly stamped?

Then the next question that falls for consideration is whether

these can be used for any collateral purpose. The larger Bench of

Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala

Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P.

(242) has held that the whole process of partition contemplates

three phases i.e. severancy of status, division of joint property by

metes and bounds and nature of possession of various shares. In a

suit for partition, an unregistered document can be relied upon for

collateral purpose i.e. severancy of title, nature of possession of

various shares but not for the primary purpose i.e. division of joint

properties by metes and bounds. An unstamped instrument is not

admissible in evidence even for collateral purpose, until the same is

impounded. Hence, if the appellants/defendants want to mark these

documents for collateral purpose it is open for them to pay the

stamp duty together with penalty and get the document impounded

and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for

collateral purpose subject to proof and relevance.

Accordingly, Civil Appeal is partly allowed holding that Exhibits

B-21 and B-22 are admissible in evidence for collateral purpose

subject to payment of stamp duty, penalty, proof and relevancy.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8441 OF 2015

ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 12788 OF 2014

YELLAPU UMA MAHESWARI  V BUDDHA JAGADHEESWARARAO & ORS.

Dated: October 08, 2015

Author: N.V. RAMANA, J.

Citation:(2015) 16SCC787

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Whether court can allow damages for breach of contract if there is no pleading and proof in that regard?

As regards the question of damages it must be pleaded and proved. If there is no such plea and proof then no damages can be awarded. The appellant-plaintiff ought to have proved that within a reasonable time after the breach of contract it made purchases and sustained damages. There is absolutely no such evidence. This being the case the appellant-plaintiff cannot be granted any damages. Hence the finding of the trial Court that the appellant-plaintiff is entitled to damages at the rate of Rs. 200 per candy is set aside. It follows therefore that the deduction of Rs. 5000, from the security deposit of the first defendant is not correct and the first defendant is entitled to that amount also.

Madras High Court

The Kanyakumari District ... vs Vermurugan Cotton Traders on 24 July, 1990

Equivalent citations: (1991) 46 MLJ 1

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What is distinction between proof of marriage and validity of marriage?

I am unable to agree with the contention of learned counsel for the appellants. There is a distinction between proof of marriage and validity of marriage. The proof of marriage can be achieved, by direct evidence of the marriage ceremony or registration of marriage or by circumstantial evidence, one of the circumstances being long cohabitation and living together. But, a marriage which is questioned on the ground of being subsequent to and during the subsistence of an earlier marriage, could not, by any stretch of argument or imagination, be sanctified or validated by any length of cohabitation or living together. After the advent of Tamil Nadu Hindu (Bigamy Prevention and Divorce Act, 1949 and Hindu Marriage Act, 1955, the second marriage during the subsistence of the first marriage is totally void, illegal and opposed to public policy. No amount of pleading or proof of custom or consent by wife can validate such a marriage.

Madras High Court

Chinnammal And 8 Others vs Elumalai And 4 Others on 14 January, 2000

Equivalent citations: 2000 (2) CTC 214, II (2000) DMC 278

Bench: K Sivasubramaniam

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Whether court can consider documentary evidence at stage of temporary injunction without proof?

The claim of temporary injunction, made by plaintiff needs to be considered by Court in view of the provisions laid down under Order XXXIX, Rules 1 and 2 of Civil Procedure Code. Order XXXIX, Rule 1 of Civil Procedure Code opens with the wording, "Where in a suit, it is proved by affidavit or otherwise, temporary injunction may be granted by the Court." Prima facie case, balance of convenience and irreparable loss are the factors which require to be taken into consideration by the Court while considering the application for temporary injunction. So far material is concerned, the Court can resort to affidavit filed by the party or otherwise. The expression 'otherwise' refers to various other circumstances. In a given case there may be record of rights, various documents of title or transfer of the property or other circumstances. The consideration by the Court to such material at the stage of considering application for temporary injunction is one aspect of the matter and consideration of these circumstances, at the time of trial is different aspect of the matter. At the stage of temporary injunction, Court can refer to documents which are produced on record without formal proof. At that time of the trial Court has to take into consideration the documents which are established in accordance with the provisions of the Indian Evidence Act and proved on formal proof. In other words, formal proof of the documents, which otherwise is necessary at the time of deciding the suit in that strict sense is not necessary while considering the documents concerned at the time of consideration of the prayer for temporary injunction. Public documents can be considered at the time of temporary injunction as well as at the time of disposal of the suit without formal proof and in view of the provisions of the Indian Evidence Act.

Bombay High Court

Shamrao Ganpat Chintamani vs Kakasaheb Laxman Gorde on 19 October, 2007

Equivalent citations: 2008 (2) MhLj 819

 Citation: 2008(2)ALLMR118,

S.B. Deshmukh, J.

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Pleading and proof in reference u/s 30 of land acquisition Act

 Section 53 of the Land Acquisition Act, 1894 states that the Code of Civil Procedure will apply to proceedings before the Court save in so far as the provisions of the Code of Civil Procedure are  inconsistent with anything contained in the said Act. There can be no dispute that a reference under Section 30 the said Act are civil proceedings.

The nature of this proceedings as has always been understood is that they are in the nature of a interpleader's suit. The Full Bench of the Kerala High Court in the case of Thevaril Ranee Sidhan and Anr. v. The Special Tahsildar for Land Acquisition and Ors.

relying on an earlier decision of the Division Bench of that Court in Chandan Vydiar v. Chakkuti Vidyar (1969 Kerala L R 691) has stated that the proceedings for apportionment of compensation are in the nature of an interpleader suit and the parties to these proceedings are free to litigate in the ordinary way as in an ordinary suit to determine what their respective rights in respect of the amount of compensation or any portion thereof are. The proceedings being of civil nature, the parties certainly are required to plead their case and lead evidence in support of the same. The ordinary rule of pleadings that no amount of evidence can be looked into in support of a plea not taken ought to be followed in such cases as well. The respondents therefore, after pleading that the land belonged to the Comunidade were not entitled to lead evidence claiming that they were owners of the same. In other words, the respondents were not entitled to deviate from the plea taken. The respondents having filed a written statement duly verified and having claimed prescription as against the Comunidade, were not entitled to depose contrary to the said pleadings and claim a right that they were the owners of the acquired property and that too without producing any documents of title. Any other view would create untold hardships to other parties who would not know as to what case they have to meet.

Bombay High Court

Jacinto Minguel De Quadros ... vs Haridas Maruti Kamat, Mahadev ... on 18 October, 2005

Equivalent citations: 2006 (2) BomCR 84, (2005) 107 BOMLR 879

Bench: R Lodha, N Britto

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Whether Variance in pleading and proof if insignificant will invalidate case of plaintiff?

Another aspect which impressed the High Court was the variance in the pleadings in the plaint and the evidence adduced by the plaintiffs. To appreciate the said conclusion, we have keenly perused paragraphs 6 and 7 of the plaint and the evidence brought on record. It is noticeable that there is some variance but, as we perceive, we find that the variance is absolutely very little. In fact, there is one variation, i.e., at one time, it is mentioned as Rs.6,64,670 whereas in the pleading, it has been stated as Rs.6,24,670 and there is some difference with regard to the date. In our considered view, such a variance does not remotely cause prejudice to the defendant. That apart, it does not take him by any kind of surprise. In Celina Coelho Pereira (Ms) and others v. Ulhas Mahabaleshwar Kholkar and others[7], the High Court had non-suited the landlord on the ground that he had not pleaded that the business of the firm was conducted by its partners, but by two other persons and that the tenant had parted with the premises by sub-letting them to the said two persons under the garb of deed of partnership by constituting a bogus firm. This Court observed that there is substantial pleading to that effect. The true test, the two-Judge Bench observed, was whether the other side has been taken by surprise or prejudice has been caused to him. In all circumstances, it cannot be said that because of variance between pleading and proof, the rule of secundum allegata et probate would be strictly applicable. In the present case, we are inclined to hold that it cannot be said that the evidence is not in line with the pleading and in total variance with it or there is virtual contradiction. Thus, the finding returned by the High Court on this score is unacceptable.

Supreme Court of India

M/S Gian Chand & Brothers vs Rattan Lal @ Rattan Singh on 8 January, 2013

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What will be effect of variance in pleading and proof?

Another aspect which impressed the High Court was the variance in the pleadings in the plaint and the evidence adduced by the plaintiffs. To appreciate the said conclusion, we have keenly perused paragraphs 6 and 7 of the plaint and the evidence brought on record. It is noticeable that there is some variance but, as we perceive, we find that the variance is absolutely very little. In fact, there is one variation, i.e., at one time, it is mentioned as Rs.6,64,670 whereas in the pleading, it has been stated as Rs.6,24,670 and there is some difference with regard to the date. In our considered view, such a variance does not remotely cause prejudice to the defendant. That apart, it does not take him by any kind of surprise. In Celina Coelho Pereira (Ms) and others v. Ulhas Mahabaleshwar Kholkar and others[7], the High Court had non-suited the landlord on the ground that he had not pleaded that the business of the firm was conducted by its partners, but by two other persons and that the tenant had parted with the premises by sub-letting them to the said two persons under the garb of deed of partnership by constituting a bogus firm. This Court observed that there is substantial pleading to that effect. The true test, the two-Judge Bench observed, was whether the other side has been taken by surprise or prejudice has been caused to him. In all circumstances, it cannot be said that because of variance between pleading and proof, the rule of secundum allegata et probate would be strictly applicable. In the present case, we are inclined to hold that it cannot be said that the evidence is not in line with the pleading and in total variance with it or there is virtual contradiction. Thus, the finding returned by the High Court on this score is unacceptable.

Supreme Court of India

M/S Gian Chand & Brothers vs Rattan Lal @ Rattan Singh on 8 January, 2013

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