“Directly exhibiting the registered deeds shall advance quick disposal of the cases”

- Md. Mukhlasur Rahman

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Published On - February 15, 2016 [Vol. 4, Jan - Jun, 2016]

Introduction:

Having practical experience in the court of first instance it has come to our notice that in smooth disposal of civil suits in trial court an undue problem has been created. The said problem is about marking the registered documents adduced by the parties as exhibits. There are different varieties of misconceptions about marking the registered deeds as exhibits. Some are of view that no deed can be exhibited without proving it by calling the concerned volume from the Sub-registry office except when it is 30 years old; some are of view that if it is original document, needs not calling the volume, but if it is certified copy then the volume must be called for exhibiting it.

We know that in every civil case lots of registered deeds are involved. But for the above said views, in most of the cases, all the deeds have to be exhibited in the court by calling the original volumes. We also watch that even in ex parte disposal of the suits the registered deeds are being exhibited by calling the volumes. Thereby, a huge amount of time of the court as well as lots of money and labor of the litigants are consumed only in marking exhibits of registered deeds and accordingly disposal of suits take unusual delay. But if we can exhibit the registered deeds as per law of evidence directly whenever it is filed, disposal of cases can be done much more quickly.

Therefore, we may discuss the statutory provisions for admissibility of documentary evidence, principally the registered deeds, herein below:

Formal proof; what is it:

Some are confused between differentiating “admissibility of a deed in evidence” and “formal proof of a deed”, treating those to be same; but there are differences between those two. Nowhere in the Evidence Act have we found the term ‘formal proof’ and there is also no definition of this term. However, Part II of the Evidence Act contains the subject-matter of “On Proof”. In this part of the Act Chapter V contains the matters of “Of Documentary Evidence” and in this chapter sections 67 to 73 of the Act contain the procedures for proof of signatures and handwriting of a person, proof of execution of document required by law to be attested, etc. Formal proof of a document, as we have construed, means proving a document by the methods of secs. 67-73. Therefore, it is clear that formal proof of a registered document does not mean proving the document by calling the concerned volume from the Sub-registry Office; rather, as per sec. 68 of the Act, it means proof of the document by any of the attesting witnesses.

Documents admissible u/ss. 64-65 of Evidence Act can be directly marked as exhibits in evidence:

So far in our study, we do not find that the Evidence Act expressly categorizing that “so and so” documents are ‘admissible in evidence’. Even we do not find the definition of this term ‘admissibility in evidence’ either in this Act or in any other statute.

In Chapter V of the Evidence Act sections 61 provides that contents of documents may be proved either by primary or by secondary evidence. Sec. 64 of the Act articulates that documents must be proved by original copy except in the cases mentioned in sec. 65. Sec. 65 provides that in certain cases secondary evidence is also admissible and in the foot of the section it has clarified that “in case the original is a public document within the meaning of sec. 74 or the original is a document of which a certified copy is permitted by this Act or by any other law in force in Bangladesh to be given in evidence, a certified copy of the document is admissible. It is undoubted that u/s. 74(2) of the Act the registered deeds are public documents. Moreso, certified copy of it is permissible u/s. 76 of this Act. Therefore, from a compact reading of all these sections we find a clear picture that both original and certified copy of a registered deed being a public document is directly admissible in evidence without any formal proof.

Whether registered documents less than 30 years old can be directly exhibited:

The opponent group’s strongest disagreement is that unless a document is as old as 30 years, it cannot be exhibited without formal proof. In reply to that objection we have to say that sec. 90 of the Evidence Act does not provide for admissibility of any document or it does not provide any condition that if any document is of less than 30 years old, it cannot be admitted as evidence without proving it by calling the concerned volume or any other formalities. It provides that when a deed is 30 years old, the court may presume it to be genuine. Accordingly, there is no hindrance under this section to directly mark any piece of document, whether registered or unregistered, as exhibits, even if it is not 30 years old.

We, however, suggest that the presumptive value as attached u/s. 90 of this Act should mean an unregistered or unofficial paper which has no presumptive value either under this Act or any other law. But the documents which have presumption under any provision of this Act or any other law, e.g. u/ss. 114, 79 of this Act or sec. 60 of Registration Act, etc., have presumptive value of correctness. Therefore, a registered deed, either original or certified copy, even if it is not 30 years old, having presumptive value of correctness u/ss. 114, 79 of this Act and sec. 60 of Registration Act, is directly admissible as exhibit in evidence without proving it by calling the concerned volume uss. 64 & 65 of Evidence Act.

Whether a 30 years old deed is conclusive proof:

General rule is that an instrument of 30 years old proves itself as to its execution and contents of the document, provided it be produced from a proper custody.[1] However, it should be remembered that a 30 years old deed has only presumptive value but not conclusive proof of the matter. The position of law is that a 30 years old document is, admissible in evidence but the contents of the same or the genuineness of it may be challenged and evidence may be led to rebut the legal presumption by virtue of the provisions of sec. 90 of the Evidence Act regarding its correctness. [2]

Even certified copies of registered deeds are admissible in evidence:

Ext. 7 is a certified copy of the registered deed of sale dated. 10.9.1918. The appellate court below expunged this document from evidence on the ground that it was not properly proved under the relevant provision of the Evidence Act. But he failed to consider that u/s. 51 of Registration Act all registration offices have been directed to keep certain books in which all documents that have been registered are to be entered. Sec. 57 of said Act directs Registering Officers to give certified copies of all documents entered in such books. The copies thus given are admissible for purpose of proving the contents of the original documents and are merely evidence of private transactions. These are not public documents. But where a case for the reception of secondary evidence is made out under provisions of sec. 65 of the Evidence Act, certified copy of the registered document becomes admissible in proof of the contents of the original document under the provisions of sec. 57(5) of the Registration Act.[3]

When an original document is lost secondary evidence thereof is admissible and it shall be presumed to be correct. However, this presumption is rebuttable and the presumption is as to regularity of the official act and not as to the correctness of its contents. [4]

 It appears that D.W. 1, wife of defendant no. 68, produced this certified copy of the partition deed dated 16.5.1935 before the court and the court took this certified copy into evidence and marked it as ext. Kha. This ext. Kha is an old registered deed of the year 1935 and, as such, is admissible in evidence without any formal proof, 67 DLR (AD) 51.

Explanation as to non-availability of original:

As per secs. 64 and 65 of the Evidence Act where secondary evidence are admissible the same may be admitted without any formality. Nowhere in the statutes have we found any condition that for proving a fact by certified copy statements must be given as to why the originals of the deed could not be produced, though such conditions are imposed.

Proof of a document by expert when not the original but certified copy has been filed:

We also observed with grief that sometimes it is thought that as the donee of the deed did not file the original of it, the deed could not be proved by expert opinion by the party challenging it and as such the deed is presumed to be forged. In this respect it is should be known that in respect of registered deed such a view is not correct at all. Because, every registered deed’s executant’s thumb-impressions is well preserved in the registry office in the concerned thumb-book. If any one wants to prove any deed to be forged or product of false personification, then he may call the concerned thumb-book and may examine the same with the executant’s thumb-impression taken before the open court or those preserved in the registry office in connection of any admitted deed. Therefore, only non-filing of the originals can hamper presumption of correctness or genuineness attached to the registered deeds u/ss. 114(e), 79 etc. of Evidence Act and sec. 60 of Registration Act. For this view we may rely upon the authority of 36 DLR 285.

When calling for the volumes is necessary to prove a document:

Not in all cases, but only in the cases when the adverse party raise specific objection that a specific deed filed or relied upon by the other side is false and that it has no existence in the concerned volume; or that something in that deed has been changed than as preserved in the volume concerned, only in those cases the volume shall be called to see whether it is genuine or fake. Otherwise, no need for calling the volume for exhibiting the registered documents, either original or certified copy.

Mentionable that even if the adverse party does not dispute about genuineness of a registered document, the court may, especially in case of a deed respecting public property, suo motu order for proving any document by calling the original volume and/or call for the party adducing it to prove it formally u/ss. 67 and 68 of the Evidence Act. Say for examples – Even if there is no pleading from the defendant as to non-genuineness of document of plaintiff, the court is quite competent to make its decision on the basis of result obtained upon its own scrutiny of the document.[5]

Burden to call the volume for proof or disproof of a document:

In case of registered deed, whether it is original or certified copy, it has presumptive value of correctness u/ss. 114(e), 79 of Evidence Act and sec. 60 of the Registration Act. The party who raised the objection shall have to prove his allegation by calling the volume concerned at his own expenses; the person producing the registered document has no other onus except to prove its execution by any attesting witness u/s. 68 of the Evidence Act; as he has no obligation to call for the volume. Here we may rely upon the principle that burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side. If no evidence is given from either side the suit will fail and consequently the impugned kabala deed will stand valid.[6]

Value of marking the documents as exhibits:

A deed which is admitted in evidence does not mean that it has been conclusively proved; even a deed can be exhibited for the purpose of disproving its genuineness too and any one who wants to dislodge it can disprove the same by calling the original volume or by expert opinion or by any other formal means even after having it marked as exhibit. Judicial views may be referred that:- Marking a document as exhibit means admission of the document to be considered as an evidence; it does not mean that it has been proved to be genuine; such evidence obviously needs to be considered along with other evidence of the case. We find support to this view in case laws reported in 22 BLD 509 para 8, 22 DLR 858, 8 MLR (AD) 6 (10). Production of a certified copy of a sale deed does not warrant presumption of due execution of original document and a party producing secondary evidence of a document is not relieved of the duty of proving execution of original. Even in a case where a document is exhibited without objection, Court is to be satisfied as to execution of the document.[7]

Evidentiary value of registered deed and burden of proof to disprove the same:

A registered document carries presumption of correctness of the endorsement made therein – One who disputes this presumption is required to dislodge the correctness of the endorsement.[8] A registered deed has got a presumptive value of being genuine. This presumption is rebuttable. The party who claims a registered deed to be forged, colluded etc, the initial onus lies upon that party to prove that the said registered is actually forged and collusive. Here another principle is applicable is that burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side. If no evidence is given from either side the suit will fail and consequently the impugned kabala deed will stand valid.[9] Sec. 60 of the Registration Act provides that a registered document duly certified by the Registrar, is an evidence of its due registration and due execution and who alleges that it was not so, the burden would rest on him to prove the same.[10]

Contrary situations –

In a case defendant government raised question that the original owner Naresh left the country for India long ago and the suit land has been rightly enlisted as enemy property and plaintiff created some forged deeds by false personation of said Naresh. Held: In the absence of proof its due execution of registered kabala by itself does not raise any presumption of its genuineness.[11] Certificate of registration though gives rise to presumption of due execution of a deed the same does not hold good against third persons and execution of the document is to be proved by attesting witness when it is available.[12]

Concluding view:

Known to all that in these days to prove title one may have to prove lots of registered documents. If every of those documents have to be proved by calling the original volumes, then there will be unusual delay in disposal of even a single case and for that reason a party shall have to bear uncountable sufferings and huge expenses. What is significant that we all thurst for ensuring easy and rapid relief for the grievance of the helpless people by the court of justice. Under the circumstances, if the length of proceeding can be shortened by marking the registered deeds directly, then disposal of the cases would increase tenfold.

[1]  59 DLR 98, 12 MLR 97, 40 CWN PC 226, 45 CWN PC 29, 4 XP 1.

[2] 57 DLR (AD) 82.

[3] 36 DLR 285 para 8/9, 44 DLR (AD) 162.

[4] 31 DLR 28.

[5]  59 DLR (AD) 105, 26 BCR (AD) 327, 3 BLD 170.

[6]  9 ADC 224 para 16, 4 XP (AD) 42 para 12, 35 DLR 132, 33 IA 60, 102 IC Lah 283, 3 MLR (AD) 215 para 5, 50 DLR 328.

[7]  47 DLR (AD) 45, 9 BLD (AD) 135, 14 BLD (AD) 257.

[8] 55 DLR (AD) 39, 14 BLC 553, 4 XP 153 para 7(a), 12 MLR (AD) 273, 50 DLR 328, 3 MLR (AD) 215 para 5, 12 MLR (AD) 149.

[9]  9 ADC 224 para 16, 4 XP (AD) 42 para 12.

[10]  34 DLR 225, 102 IC 283, 39 DLR (AD) 223, 33 IA 60, 50 DLR 328.

[11] 3 BLD 170.

[12]  7 BLD (AD) 306.

About The Writer

Article Author Image

Md. Mukhlasur Rahman

Senior Assistant Judge, Iswargonj Chowki Court, Mymensingh.

The writer of this essay is also author of few books, namely, Pre-emption Laws in Bangladesh, Laws on Partition Suits, Model Orders and Judgments in civil suits, Law and Procedure of the Land Survey Tribunal.

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