Certified Copy Of Sale Deed Is Secondary Evidence U/S 63 Evidence Act, Does Not Prove Its Execution: Tripura High Court

The observations were made by Justice Arindam Lodh while hearing a second appeal whereby the appellants/plaintiffs had challenged an order of the civil judge in terms of which it had dismissed their suit for declaration of right and confirmation of possession on the ground that plaintiffs had not adduced in evidence the original deed of sale and there was no explanation as to why the original sale deed was not produced.

The civil court had further held that certified copies may be produced in proof of the contents of public documents, but since a deed of sale is not a public document and therefore the same i.e., the deed of sale is not proved in terms of the Evidence Act.

Aggrieved of the order the appellants/plaintiffs had preferred an appeal before the District Judge who in turn had upheld the order and decree of the civil Judge, which thereafter shaped up as the instant second appeal, seeking adjudication from the bench.

The appellants submitted that a certified copy, if exhibited without any objection by the opposite party, then, such certified copy is deemed to have been proved and hence the findings of the Court’s below as regards the admissibility of the certified copy of the sale deed were perverse and bad in law.

Adjudicating upon the matter Justice Lodh observed that the certified copy of the sale deed, when exhibited by the Court without any objection from the opposite party, is deemed to have been proved and its admissibility in evidence cannot be questioned at a later stage.

Since the defendants did not raise any objection when the certified copy of the sale deed was produced by the plaintiffs and taken into evidence by the learned trial Court the said certified copy of the original sale deed cannot be said to be inadmissible in evidence since the said deed was permitted to be exhibited by the defendant, the court added.

Expounding further on the matter Justice Lodh stated that when a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.

However while dealing with the question as to whether the appellants/plaintiffs had been able to prove the contents and execution of the sale deed they adduced as evidence, the court noted that the scribe of the sale deed, produced by the plaintiffs, during his cross-examination, had admitted admitted that he did not know the vendor of the sale deed in question or his handwriting or signature and he also could not say whether original vendor executed the sale deed before the Sub-Registrar.

In view of this factual matrix the court said that Clause (b) of Section 65 of the Evidence Act contemplates that secondary evidence may be given of the existence, condition or contents of a document when the existence, conditions or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative.

Since the existence, conditions or contents of the original sale deed have not been admitted in writing by the defendants against whom the plaintiffs wanted to prove it, the appellant/plaintiffs were duty bound to prove the execution of the sale deed.

Clarifying that a certified copy is secondary evidence under Section 63 of the Evidence Act which acknowledges/recognizes the existence, conditions and contents of the deed, but not of its execution, the bench recorded that the execution of the sale deed by Asrab Ali i.e. vendor of the sale deed (Ext.3 series) has not been proved since PW.3 admitted that he did not know Asrab Ali or his handwriting or signature and he also could not say whether original Asrab Ali executed the sale deed before the Sub-Registrar.

"In the context of the case, the attending circumstances of the execution of sale deed (Ext.3 series) ought to have been necessarily proved by the plaintiffs, which they failed to discharge by leading other evidence recognized by law of evidence", the bench underscored.

Since the appellant/plaintiffs failed to prove due execution of the sale deed in question, the court declined interference and dismissed the appeal.

Case Title: Smti. Rubia Bibi Vs Md. Mati Miah.

Citation: 2023 LiveLaw (Trip) 4

Coram: Justice Arindam Lodh.

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