Civil Procedure Code. Mere marking of an inadmissible document does not establish its proof. Marking is a ministerial act & admitting it in evidence is judicial. Law on the point discussed. Karnataka High Court.

Ismailbee vs Mehtab Saheb. Regular Second Appeal 868/2007 decided on 22 October 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349005/1/RSA868-07-22-10-2020.pdf

Relevant paragraphs: 26. ….the documents of which registration is required by Transfer of Property Act, 1882, shall be compulsorily required to be registered otherwise such documents shall not affect any immovable property. So, when once the transaction has been reduced to a form of document viz., “exchange deed”, then registration is compulsory. Such documents are not admissible as the evidence of any transaction affecting any immovable property comprised therein.

40. Marking the document in evidence is one thing and the proof, admissibility, evidentiary value of the document and acting upon it is other thing. Simply, because the document is marked as an exhibit without there being any objection by the opposite party, when it is produced in examination-in-chief that will not enure benefit to the party to claim declaration of title in a immovable property or extinguishing title of opposite party in immovable property, when admittedly the immovable property which were exchanged are worth more than Rs.100/- and requires registration.

42. The learned Single Judge of this Court in another decision reported in ILR 2003 KAR 3716 in the case of Krishna vs Sanjeev has considered the difference between “marking”, “admitting the documents” and “proof of documents during trial of the suit” as under:- “11. Marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial act. Before a document is let in evidence, there should be a judicial determination of question wherever it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not.

44. Therefore, simply because Ex.P.1 is marked in the examination-in-chief without objection by opposite party, at the time of marking it, the said document cannot be used and acted upon as a evidence of title to grant declaration of title, as it being not sufficiently stamped and not registered. The said document also cannot be looked into for collateral purpose, in view of proviso to Section 49 of the Registration Act, 1908 and Section 118 of the Transfer of Property Act, 1882.

Compiled by S. Basavaraj, Advocate, Daksha Legal.