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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:\027                  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

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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

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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:\027 "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

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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

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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.