http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

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.