GUJARAT HIGH COURT
J.B. Pardiwala, J.
Akbarbhai Kesarbhai
Sipai and Ors. —Appellants
versus
Mohanbhai Ambabhai
Patel Since Decd. thro
his Heirs and Ors. —Respondents
R/Second Appeal No.183 of 2014
Decided on 12.7.2019

IMPORTANT POINTS
(1) Registered sale deed or any other registered document is not a public document but a private document.
(2) There is a basic difference in admissibility and probative value of documents.
(3) Mere production of a certified copy of a document registered may not be enough to prove execution of document.

Headnote:

(A) Indian Evidence Act, 1872—Sections 74 and 75—Public and private documents—Deed of sale is a conveyance—Deed of sale or other registered document will not fall under either of two classes of documents described in Section 74, as public documents—Any document which is not a public document is a private document—Registered sale deed or any other registered document is not a public document but a private document.

Held: A deed of sale is a conveyance. A deed of conveyance or other document executed by any person is not an act nor record of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and executive. Nor is it a public record kept in a State of any private documents. A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration, An original registered document Is not therefore a public record kept in a state of a private document, Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in Section 74, as ‘public documents’. Any document which is not a public document is a private document. I, therefore, have no hesitation in holding that a registered sale deed (or any other registered document) is not a public document but a private document. (Para 60)

(B) Indian Evidence Act, 1872—Section 67—Admissibility and probative value of documents—There is a basic difference in admissibility and probative value of documents—Admissibility of a document is one thing and its probative value quite another—These two things cannot be combined—A document like certified copy of sale deed may be admissible and yet may not carry any weight—Proof of document is something which is independent from evidentiary value of document—As plaintiffs have denied execution of sale deed in question, in such a situation, execution must be proved as required under Section 67 of Evidence Act—Mere production of certified copy of a sale deed will not be sufficient—Mere filing of a document in a Court is not enough to make the document a part of record.

Held: However, in the case on hand, the plaintiffs have, in clear terms, denied the execution of the sale deed in question. While holding that a certified copy of sale deed is admissible in evidence, it should be borne in mind that there is a basic difference in the admissibility and probative value of the documents. The admissibility of a document is one thing and its probative value quite another. These two things cannot be combined. A document like the certified copy of sale deed, in the case on hand, may be admissible and yet may not carry any weight. A proof of document is something which is independent from the evidentiary value of the document. As the plaintiffs have denied the execution of the sale deed in question, in such a situation, the execution must be proved as required under section 67 of the Evidence Act. The mere production of the certified copy of a sale deed will not be sufficient. Mere filing of a document in a Court is not enough to make the document a part of the record. There is still a preliminary matter to be attended to, before the contents of a document can be read as evidence. This is called the authentication of the writing or proof of its genuineness as required under Section 67 of the Evidence Act. It is not the legislative mandate that the direct evidence of handwriting was always necessary under Section 67 of the Evidence Act. The section also does not lay down any rule as to the kind of proof to be given. It follows from Section 67 that no particular kind of proof is required for the purpose of establishing the fact of execution or the contents of the document. It must nevertheless be shown to the satisfaction of the Court the particular facts which needs to be established. At the cost of repetition, I state that the due execution can be proved by establishing that the signature in token of execution was affixed to the document by the person who is stated to have executed the document. This is normally done either; (Para 88)

(C) Registration Act, 1908—Section 51—Indian Evidence Act, 1872—Section 65—Secondary evidence—Mere production of a certified copy of a document registered may not be enough to prove execution of document—But it is sufficient to prove contents of document—Certified copy of a sale deed issued by Registration Officer under Registration Act can be produced and marked as secondary evidence of a public document—Such certified copy issued by Registration Officer in view of certificates copied therein and certificate made while issuing certified copy will prove (i) that a document has been presented before Registration Officer for registration; (ii) that execution had been admitted by person who claimed to be executant of document and (iii) that document was thereafter registered in Registration Office and entered (copied) in Book 1—It is not however proof of fact that original sale deed was duly executed by actual person described as Executant.

Held: The position therefore is that a certified copy of a sale deed issued by the Registration Officer under the Registration Act can be produced and marked as secondary evidence of a public document (that is Entries in Book 1 maintained under Section 51 of the Registration Act containing the copy of the registered document). Such certified copy issued by the Registration Officer in view of the certificates copied therein and the certificate made while issuing the certified copy will prove (i) that a document has been presented before the Registration Officer for registration; (ii) that execution had been admitted by the person who claimed to be the executant of the document and (iii) that the document was thereafter registered in the Registration Office and entered (copied) in Book 1. It is not however proof of the fact that original sale deed was duly executed by the actual person described as Executant. Production of a certified copy of a public document under Section 65(e) or production of a certified copy under Section 65(f) is completely different from production of a certified copy as secondary evidence of a private document (for eg, a sale deed under clauses (a), (b) and (c) of Section 65.

A combined reading of Sections 57 and 60 of the Registration Act and Section 67 of the Evidence Act lead me to the conclusion that mere production of a certified copy of a document registered may not be enough to prove the execution of the document. But it is sufficient to prove the contents of the document. A certificate issued by the Registrar under Section 60 is acceptable in evidence to prove to some extent the admission of execution made by the executor before the Registrar. It may be that an imposter approached the Registrar and got the registration made, but no such allegation is made in this case. It is not even suggested to any one in the witness box. If apart from the admission incorporated in the certificate of the Registrar under section 60(2) of the Registration Act, there is other evidence to corroborate the admission, the execution of the document can be considered as proved. The two courts below, as stated above, after due consideration of the oral as well as the documentary evidence on record, has recorded a concurrent finding as regards the genuineness of the sale deed as well as due execution of the sale deed. The attempt on the part of the learned counsel appearing for the power of attorney is to persuade me to take the view that the evidence on record is deficient and not sufficient to hold valid execution of the sale deed.

(Para 109 and 151)

(D) Hindu Minority and Guardianship Act, 1956—Section 8—Limitation Act, 1963—Article 60—Disposal of property belonging to minor—Even in a situation where Hindu Minority and Guardianship Act, 1956 is applicable, disposal of property of minor by guardian without prior permission of District Court is voidable as opposed to void at instance of concerned minor and upon attaining majority—Such option is required to be exercised by minor by filing appropriate Civil Suit for setting aside such transfer within a period of three years from date of attaining majority by minor.

Held: The Hindu Minority and Guardianship Act, 1956 contains a provision vide section 8(2) thereof requiring the guardian of the minor to obtain the prior permission of the District Court before causing disposal of any property belonging to the minor. However, the appellants are not governed by the Hindu Minority and Guardianship Act, 1956. The appellants are Muslims. Even in a situation where the Hindu Minority and Guardianship Act, 1956 is applicable, the disposal of the property of the minor by the guardian without the prior permission of the District Court is voidable as opposed to void at the instance of the concerned minor and upon attaining majority. Such option is required to be exercised by the minor by filing an appropriate Civil Suit for setting aside such transfer within a period of three years from the date of attaining majority by the minor (See section 8(3) of the Hindu Minority and Guardianship Act, 1956 read with article 60 of the Limitation Act, 1963.

(Para 162)

Result: Second Appeal dismissed with costs.