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CASE NO.:
Appeal (civil) 2434 of 2000
PETITIONER:
SMT. DAYAMATHI BAI
RESPONDENT:
SRI K.M. SHAFFI
DATE OF JUDGMENT: 04/08/2004
BENCH:
ASHOK BHAN & S.H. KAPADIA.
JUDGMENT:
J U D G M E N T
KAPADIA, J.
This appeal by special leave is filed by the original defendant
against the judgment and order dated 18th December, 1998 passed by
the High Court of Karnataka in R.S.A. No.802 of 1995.
Briefly, the facts giving rise to this appeal are as follows:
K.M. Shaffi, respondent herein instituted a suit bearing O.S.
No.451/84 in the Court of Principal Munsiff, Bellary (hereinafter for
the sake of brevity referred to as "the trial Court") for a declaration
that a portion of T.S. No.272-A and T.S. No.273-B admeasuring
80'x120' (hereinafter for the sake of brevity referred to as "the suit
plot") was his and his brother's absolute property. In the said suit, the
plaintiff also sought an injunction restraining the appellant herein
(defendant) from entering the suit plot.
T.G. Sreenivasa Pillai, T.G. Vivekananda Pillai and T.G.
Sathyanarayana Pillai sons of Gurunatham Pillai were the owners of
suit land bearing S. No.635R (which was revised to T.S. 272)
admeasuring 90 cents and S. No.635T (revised to T.S. 273)
admeasuring 5 acres 38 cents. The sons of Gurunatham Pillai sold the
above lands to Khan Saheb Abdul Hye vide sale deed dated
14.11.1944 (Ex.P.1) for Rs.300/-. Khan Saheb Abdul died in 1947
leaving behind him his two sons, Basheer and Muneer who in turn
gifted the said lands to one Sattar (father of the plaintiff) and Rahiman
(plaintiff's uncle) under gift deed dated 20.6.1966 (Ex.P2). Sattar and
Rahiman got the above lands sub-divided. In the partition suit
No.381/72 on the file of Principal Munsiff, Bellary the plaintiff herein
and his brother got the sub-divided plot Nos.T.S. 272A and T.S. 273B
which included the suit plot admeasuring 80'x120'. The present title
suit was filed when the appellant herein tried to enter upon the suit
plot.
In the written statement, the appellant herein pleaded that the
suit plot admeasuring 80'x120' was a separate plot and that it was not
a part of T.S. 272A and T.S. 273B as alleged. It was pleaded that the
suit plot was separately assessed by the municipality. It was pleaded
that on 19.7.1967, the husband of the appellant had bought the suit
plot from one Rajarathnam. That the husband of the appellant had
later on executed a deed of settlement in favour of the appellant on
12.1.1973 and that the appellant had been in possession and in
enjoyment of the suit plot. That Rajarathnam had purchased the suit
plot in 1965 from the wife of Gurunatham Pillai. In the written
statement, the appellant herein denied that the sons of Gurunatham
had sold the lands to Khan Saheb Abdul as alleged. It was contended
that sons had no right to sell the said lands. That the wife of
Gurunatham was the owner. That she had not executed any
conveyance in favour of Khan Saheb. In the written statement,
appellant denied the gift by sons of Khan Saheb to Sattar and
Rahiman.
Two main points arose for determination before the trial Court.
Firstly, whether the plaintiff is the owner of the suit plot. Secondly,
whether the suit plot formed part of T.S.272A and T.S.273B.
According to PW1 the title came to him through the sons of
Gurunatham vide Ex.P1 which was a registered sale deed dated
14.11.1944 and later on under Ex.P2 which is gift deed executed by
sons of Khan Saheb in favour of Sattar and Rahiman.
On the other hand, the appellant (defendant) claimed title only
to the suit plot admeasuring 80'x120'. She claimed it to be a separate
property. She traced her title to the wife of Gurunatham. She
contended that the sons of Gurunatham had no right to sell.
The trial Court found that when on 14.11.1944 the sons of
Gurunatham Pillai had sold the above lands vide sale deed Ex.P1 to
Khan Saheb Abdul for Rs.300/-, the wife of Gurunatham had no right
to sell the suit plot in 1965 through her constituted attorney to
Rajarathnam from whom the husband of the appellant claims to have
purchased the suit plot. The trial Court further observed that before it
there was no plea that the wife of Gurunatham was the absolute
owner. The trial Court found from Ex.P1 that the sons of Gurunatham
had sold the lands for family necessity. In the circumstances, the trial
Court held that no title had vested in Rajarathnam. The trial Court
further found that Ex.P1 was more than 30 years old document and
the presumption under Section 90 of the Evidence Act applied to the
said documents. Before the trial Court Ex.P2 stood proved by the
plaintiff who examined the constituted attorney of Basheer and
Muneer as PW2. Further, execution of Ex.P2 was not challenged.
At this stage, it may be mentioned that the appellant did not
object to the registered sale deed Ex.P1 dated 14.11.1944 being
marked and admitted in evidence. The appellant also did not challenge
the execution of Ex.P2. Hence the trial Court decreed the suit.
Being aggrieved by the decree passed by the trial Court, the
appellant herein preferred Regular Appeal no.36 of 1988 in the Court
of Civil Judge, Bellary (hereinafter for the sake of brevity referred to
as "the lower appellate Court"), who took the view inter alia that the
plaintiff had failed to prove Ex.P1 and Ex.P2 as neither the executant
nor the donor had been examined. That Ex.P1 and Ex.P2 could not be
acted upon as the original deed dated 14.11.1944 (Ex.P1) had not been
produced. The lower appellate Court found that the plaintiff had not
laid the foundation for admissibility of secondary evidence under
Section 65(a) and (f) and in the circumstances the sale was not
proved. The lower appellate Court observed that although the original
deed was available in the collateral proceedings the plaintiff took no
steps to produce it before the trial Court in the present suit. The lower
appellate Court further found that the power of attorney in favour of
PW2 was duly registered. That the plaintiff could have summoned it
from the office of the sub-registrar. This was not done. In the
circumstances, the lower appellate Court came to the conclusion that
both the Exhibits P1 and P2 were not proved. Consequently, the
lower appellate Court allowed the appeal and dismissed the suit filed
by the plaintiff.
Aggrieved by the decision of the lower appellate Court, K.M.
Shaffi, the original plaintiff preferred Second Appeal under section
100 of CPC before the High Court. At the time of admission of the
second appeal, following substantial question of law was formulated
by the High Court:
"As to whether the lower appellate Court has erred in
holding that the certified copies of the sale deed and the
gift deed being Exs.P1 and P2 respectively are not
admissible in evidence and as such the plaintiff had failed
to substantiate his title over the suit schedule property?"
The High Court on consideration of various authorities came to
the conclusion that since the copy of Ex.P1 was a certified copy and
since it is more than 30 years old document, the trial Court was right
in invoking the presumption under Section 90 of the Evidence Act.
Consequently, the appeal was allowed. Hence, this civil appeal.
Ms. Kiran Suri, learned counsel appearing on behalf of the
appellant submitted that once the document becomes incapable of
being proved for want of primary evidence, the foundation of
secondary evidence must be laid, without which, such secondary
evidence was inadmissible. That in the present case, no steps were
taken by the plaintiff to produce the original sale deed. That no steps
were taken to prove the loss of the original sale deed. That no steps
were taken to establish the source from which certified copy was
obtained. She submitted that if the foundation is laid under section 65
and if the plaintiff was able to prove that the original sale deed was
lost then the secondary evidence was admissible but in the absence of
such a foundation, the High Court erred in holding that the registered
certified copy of the sale deed was admissible in evidence as the
document produced was more than 30 years old.
We do not find merit in this civil appeal. In the present case the
objection was not that the certified copy of Ex.P1 is in itself
inadmissible but that the mode of proof was irregular and insufficient.
Objection as to the mode of proof falls within procedural law.
Therefore, such objections could be waived. They have to be taken
before the document is marked as an exhibit and admitted to the
record (See: Order XIII Rule 3 of Code of Civil Procedure). This
aspect has been brought out succinctly in the judgment of this Court in
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.
Temple & Another reported in [(2003) 8 SCC 752] to which one of
us, Bhan, J., was a party vide para 20:
"20. The learned counsel for the defendant-respondent
has relied on Roman Catholic Mission v. State of
Madras [AIR 1966 SC 1457] in support of his
submission that a document not admissible in evidence,
though brought on record, has to be excluded from
consideration. We do not have any dispute with the
proposition of law so laid down in the abovesaid case.
However, the present one is a case which calls for the
correct position of law being made precise. Ordinarily,
an objection to the admissibility of evidence should be
taken when it is tendered and not subsequently. The
objections as to admissibility of documents in evidence
may be classified into two classes: (i) an objection that
the document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection
does not dispute the admissibility of the document in
evidence but is directed towards the mode of proof
alleging the same to be irregular or insufficient. In the
first case, merely because a document has been marked
as "an exhibit", an objection as to its admissibility is not
excluded and is available to be raised even at a later stage
or even in appeal or revision. In the latter case, the
objection should be taken when the evidence is tendered
and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not
have been admitted in evidence or that the mode adopted
for proving the document is irregular cannot be allowed
to be raised at any stage subsequent to the marking of the
document as an exhibit. The latter proposition is a rule
of fair play. The crucial test is whether an objection, if
taken at the appropriate point of time, would have
enabled the party tendering the evidence to cure the
defect and resort to such mode of proof as would be
regular. The omission to object becomes fatal because
by his failure the party entitled to object allows the party
tendering the evidence to act on an assumption that the
opposite party is not serious about the mode of proof. On
the other hand, a prompt objection does not prejudice the
party tendering the evidence, for two reasons: firstly, it
enables the court to apply its mind and pronounce its
decision on the question of admissibility then and there;
and secondly, in the event of finding of the court on the
mode of proof sought to be adopted going against the
party tendering the evidence, the opportunity of seeking
indulgence of the court for permitting a regular mode or
method of proof and thereby removing the objection
raised by the opposite party, is available to the party
leading the evidence. Such practice and procedure is fair
to both the parties. Out of the two types of objections,
referred to hereinabove, in the latter case, failure to raise
a prompt and timely objection amounts to waiver of the
necessity for insisting on formal proof of a document, the
document itself which is sought to be proved being
admissible in evidence. In the first case, acquiescence
would be no bar to raising the objection in a superior
court."
To the same effect is the judgment of the Privy Council in the
case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in [AIR
1943 PC 83], in which it has been held that when the objection to the
mode of proof is not taken, the party cannot lie by until the case
comes before a Court of appeal and then complain for the first time of
the mode of proof. That when the objection to be taken is not that the
document is in itself inadmissible but that the mode of proof was
irregular, it is essential that the objection should be taken at the trial
before the document is marked as an exhibit and admitted to the
record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it
has been stated that where copies of the documents are admitted
without objection in the trial Court, no objection to their admissibility
can be taken afterwards in the court of appeal. 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.
In the present case, when the plaintiff submitted a certified copy
of the sale deed (Ex.P1) in evidence and when the sale deed was taken
on record and marked as an exhibit, the appellant did not raise any
objection. Even execution of Ex.P2 was not challenged. In the
circumstances, it was not open to the appellant to object to the mode
of proof before the lower appellate Court. If the objection had been
taken at the trial stage, the plaintiff could have met it by calling for the
original sale deed which was on record in collateral proceedings. But
as there was no objection from the appellant, the sale deed dated
14.11.1944 was marked as Ex.P1 and it was admitted to the record
without objection. For the foregoing reasons, we do not find any merit in this civil
appeal and the same is accordingly dismissed, with no order as to
costs.
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