What is documentary evidence?

Documentary evidence means and includes all documents, including electronic records produced for the inspection of the Court. Document means any matter expressed or described.
upon any substance utilizing letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used to record that matter.

To prove the documents original document is to be produced. Contents of it are to be proved so also signature on the same have to be proved. When the document appeals to the conscious of the Court that it is genuine, contents of the same need not be proved (“M. Narsinga Rao vs. State of Andhra Pradesh” AIR 2001 SC 318)

DEFINITION OF DOCUMENT:- Document has been defined in section 3 of the interpretation clause of evidence act as under:-“document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter”Some illustrations have been appended with this section to explain the phrase `document’.The said definition has also been adopted in section 3(18) of the General Clauses act, 1897.Both these acts had been brought on the statue book in the nineteenth century. After the passage of one and a half century, the definition of a document has not undergone any change or modification till date.

How can you prove the contents of a document?

A document is said to be proved if following three criteria are satisfied:-

(a) Firstly, the execution (via Sections 67-73, IEA) of a document, i.e. the handwriting or signature on the document, if any, is proved. (Genuineness of a document)

(b) Secondly, contents/condition (via primary or secondary evidence/S.61-66, IEA) of a document, and  

(c) Thirdly, truthfulness (via oral evidence/S.59-60, IEA) of the contents of a document

The contents of documents can be proved by oral evidence. However, the contents must be proved by admissible evidence. If the truth of the facts stated in the documents itself is in issue, then, proof of execution of the document should not be equated with the proof of facts stated in the document.

Proof of contents of the document:

Normally, any party who wants to prove the content of the document is required to lead evidence by production of the original document before the court through its author. Under Section 61, the original document can be presented before the Court through the author, who created the document, and it can be proved. G. Subbaraman vs. State, 2018 Cri. LJ 2377 (Mad).

Recitals in documents:

The recitals in the document do not become a part of the evidence. They are assertions by a
person who is alive and who might have been brought before the Court if either of the parties to the suit had so desired. This distinction is frequently overlooked and when a document has been admitted in evidence as evidence of a transaction the parties are often apt to refer to the recitals therein as relevant evidence. Nihar Bera vs. Kadar Bux Mohammed, AIR 1923 Cal 290.

Proof of execution of documents:

Proof of handwriting:
Except when judicial notice is taken of official signatures, the handwriting or signature of unattested documents must be proved. 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. This can be done in the following ways:

1. By calling the writer;
2. by an expert;
3. by a witness who is familiar with the handwriting of the writer; (AIR 1983 SC 684 “State of Bihar vs. Radha Krishna Singh”)
4. by comparison of the disputed writing, signature, or seal with some other admitted or proven writing, signature, or seal of the person; or
5. by admission of the party against whom the document is tendered

Proof of sealing:
The sealing of a document can be the subject of judicial notice, proof, or presumption. When the seal of a foreign notary is put on a document, a presumption regarding the
genuineness of the seal of the notary can be raised.
Proof of attestation:
If a document is required to be attested by law, it must not be used as evidence until one attesting witness has at least been called to prove its execution, if such a witness is alive and subject to the process of the Court and capable of giving evidence. (“H. Venkatachala Iyengar vs. B.N. Thimmajamma” AIR 1959 SC 443 ) If there is no denial of execution of the document, then it is not necessary to call a witness to prove the same. For the purpose of valid attestation of a Will under Sec.63, it is absolutely necessary that the attesting should either sign or affix thumb impression or mark himself, as the Section does not permit an attesting witness to delegate that function to another. In the decision reported in S.R.Srinivasa & others vs. S. Padmavathamma, AIR 2010 SCW 3935A it is held that mere signature of scribe cannot be taken as proof of attestation without evidence regarding other witnesses to Will.

Scribe:

The party who sees the Will executed, is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness. The scribe or writer of a document may perform a dual role; he may be an attesting witness as well as the writer.

Sub-Registrar and Identifying Witnesses:
A Will is not required by law to be registered Sec. 63 of Indian Succession Act, merely requires that the Will should be attested by two or more witnesses,. Each of whom, has either seen the testator sign, or affix his mark to the Will, or has received a personal acknowledgment of his signature from the testator, and each of the witnesses should sign the Will in the presence of the testator- no matter when, but before the Will had come into operation; where before it was presented for registration, it bore the signature of only one attesting witness, the signature of sub-registrar and of another person who are proved to have signed the Will in the presence of the testator, though as registering authority or an identifying witness, after,its execution had been admitted before them by the testator must be regarded as sufficient compliance with Sec. 63 Succession Act.

PROOF OF DOCUMENTS WHERE NO ATTESTING WITNESS IS FOUND

Section 69 of the Indian Evidence Act provides that if no such attesting witness can be found or if the document purports to have been executed in the United Kingdom it must be proved that the attestation of one attesting witness at least is in his handwriting and the signatures of the person executing the document is in the handwriting of that person. This section deals with the contingency where both the attesting witnesses are dead, then, their signatures, thumbmark can be proved by calling any person who can prove the said signatures or handwriting. The second requirement of this section is that the signatures/thumb mark of the executants has to be proved to be that of the executant in a legally permissible manner.

PROOF OF DIGITAL SIGNATURES

Section 73A of the Indian Evidence Act provides for the mode of proof of digital signatures of the person by whom it purports to have been affixed by modes provided in this section.

PROOF WHEN ATTESTING WITNESS DENIES THE EXECUTION

Section 71 of the Indian Evidence act provides that of attesting witness denies or does not recollect the exhibition of the document, its execution may be proved by other evidence. The phrase `other evidence’ has to be interpreted in terms of section 69 of Indian Evidence Act, 1872.

PROOF OF DOCUMENT REQUIRED BY LAW TO BE ATTESTED.

Section 68 of the act provides the mode of proof of execution of documents required by law to be attested. Such document shall not be used in evidence until one attesting evidence atleast has been called for the purpose of proving its execution if there be an attesting witness alive and subject the process of court and capable of giving evidence.Three ingredients can be culled out for application of this section

1. An attesting witness has to be alive.

2. He is subject to the process of court

3. He is capable of giving evidence. In case, any of the three ingredient is missing, the document cannot be said to be legally prove.

When attesting witness need not be called.

i) when the document is a registered one and its execution is not specifically denied.
ii) Even though the execution of a Will is admitted, attesting witness has to be examined. {2008 (3) KCCR 1484 (23 and 31)}
iii) When there is no attesting witness available.
iv) When a party to the document against whom, it is sought to be used, admits its execution.
v) When the document is not required by law to be attested.
vi) When the document is thirty years old and there is a presumption of due attestation.
vii) When document is called for and not produced.
viii) When the document is a Will admitted to probate in India, in which case it may by the probate.

Sec. 69: Proof where no attesting witness found:
The words ‘can be found’ in the Section are not very appropriate and must be interpreted to include not only cases where the witness cannot be produced because he cannot be traced but also cases where the witness for reasons of physical or mental disability, or for other reasons, when the Court considers sufficient, is no longer a competent witness for the purpose, as is provided in Sec. 68 of the Act.
If no attesting witness is available, it must be proved that attestation of one attesting witness is in his own handwriting and that the signature of the executants is in his handwriting. Signature includes mark.
When both the attesting witnesses were no more a line, Section 68 Indian Evidence Act cannot apply. So by applying Section 69, it has to be proved by other evidence as mentioned in Section 69. The word not found occurring in Section 69 of the Act should receive a wider purposive interpretation.

Documents produced in court have to pass through two steps. They are:

1. Admission and exhibition (if relevant)
2. Proof (or truth of contents, veracity, reliability, etc.).

The question of proof comes for consideration only if the first step (admission and exhibition, as relevant) is successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180, our Apex Court held as under:

• “Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”

Proof is of Two Types:

First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.

Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.  

• Proof as to truth is to be established-
• (i) by oral evidence of one who can vouchsafe the same or
  • (ii) by circumstantial evidence or
  • (iii) by invoking ‘presumption’ or
  • (iv) by express admission by the other side.

PROOF OF DOCUMENT

Different modes have been prescribed/demarcated under the evidence act 1872 about the proof of documents. The accepted mode of proof of documents can be summed as under:-

1. By admission of the person who wrote or signed the document

2. By calling a person in whose presence the document was signed or written(ocular evidence/attesting witness)

3. By calling a person who is acquainted with the writing of the person by whom the document is supposed to have been signed or written (Section 70)

4. By proof of an admission made by the person who is stated to have signed or written the document to that effect made in any other judicial proceedings.

5. By calling a handwriting expert who can compare in the Court the disputed signatures of writing with the admitted signatures or writing (opinion evidence/scientific evidence)

6. By calling a person who in routine has been receiving the document signed by the person in the course of his business or official duty though he may have never seen the author signing the document. All these modes have been explained in the judgment of the Himachal Pradesh High Court

Important Note:

i) An attested document not required by law to be attested may be proved as if it was unattested.
ii) The Court shall presume that every document called for and not produced after notice to produce, was attested in the manner prescribed by law.
Iii) There is a presumption of due attestation in the case of document thirty years old. The Court may in such cases dispense with proof of attestation.
iv) Where a document is required by law to be attested, and there is an attesting witness available, then, subject to the proviso, at least one attesting witness must be called.
v) If there be no attesting witness available, or if the document purports to have been executed in a foreign country, it must be proved by other evidence that the attestation of one attesting witness at least in his handwriting, and that the signature of the person executing the document is in his handwriting of that person.
vi) The admission of a party to an attested document of its execution will, so far as such party is concerned, supersede the necessity of either calling the attesting witnesses or of giving any other evidence.
vii) If the attesting witness available denies or does not recollect the execution of the document, its execution may be proved by other evidence. But where he fails to prove the execution of the document, the document is not legally proved.