Supreme Court of India

R.V.F VENKATACHALA GOUNDERversusARULMIGU VISWESARASWAMI AND V.P. TEMPLE AND ANR.

Citation: 2003 INSC 532
Decided: 8 October 2003
Disposal: Appeal(s) allowed
Bench: R C LAHOTI

Holding

The Supreme Court held that the High Court erred in entertaining the second appeal on non‑substantial questions and in rejecting admissible secondary evidence, and therefore restored the lower courts' decree in favour of the appellant.

Summary

The appellant, a hereditary trustee of a temple, claimed ownership of a shop adjoining the temple and sued for declaration of title, possession and three years' rent arrears. The trial court and first appellate court upheld his claim based on oral testimony, rent agreements, ledger books and a charity commissioner’s order stating the temple was not the owner. The High Court, on a second appeal, reversed those findings, holding that photocopies of documents were inadmissible and that the ledger books were not properly maintained. The Supreme Court held that the High Court wrongly assumed the property belonged to the temple, framed substantial questions of law on that premise, and erred in rejecting secondary evidence that had been admitted without objection. It affirmed that the ledger entries and photocopies were admissible, the burden of proof had shifted to the temple, and no substantial question of law arose. Consequently, the High Court’s judgment was set aside and the lower courts' decree restored.

Issues considered

Whether a hereditary trustee can claim title to property belonging to the temple as his own.
Whether a certificate/order issued by the Assistant Commissioner under the Tamil Nadu Hindu Religious and Charitable Endowments Act is conclusive on title.
Whether the temple’s right can be negated solely on the basis of a municipal assessment register in the appellant’s name.
Whether photocopies of documents admitted without objection are admissible as secondary evidence.
Whether ledger books kept in the ordinary course of business are admissible under the Indian Evidence Act.
Whether the High Court could re‑appreciate evidence in a second appeal under Section 100 CPC.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. Order 13 Rule 4
Indian Evidence Act, 1872s. 11, s. 116, s. 32(2), s. 34
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959s. 63

Subjects

title of propertyhereditary trusteeevidence admissibilityphotocopiesburden of proofonus of proofsecond appealCPC Section 100Indian Evidence Actcharitable endowmentsrent arrearspossession

Judgment

A R.V.F. VENKATACHALA GOUNDER
v.
ARULMIGU VISWESARASWAMI AND V.P. TEMPLE AND ANR.

OCTOBER 8, 2003

B [R.C. LAHOTI AND ASHOK BHAN, JJ.]

Code of Civil Procedure, 1908:

Section JOO-Order 13 Rule 4 CPC-Suit for declaration of title,
C arrears of rent and possession of suit property-Appel/ant producing
photocopies of the order of State Commissioner and rent agreement
between appellant and tenant and the books of accounts in support of
claiming his title-Trial court and first appellate court holding in favour
of the appellant on the basis of oral and documentary evidence-High
Court, in second appeal, reversing the concurrent findings on the ground
D that the documentary evidence are not originals-Validity of-Held, on
facts, the High Court has wrongly framed the substantial questions of 1aw
on the assumption that the suit property belonged to the temple-The
admission in evidence of photocopies cannot be questioned since no
objections were raised by respondent at the time of, tendering them into
E evidence by the appellant-Respondent failed to discharge its onus to
prove its title on suit property-Hence, High Court judgment set aside as
no substantial question of law arose-Indian Evidence Act, 1872: Sections 11"'"

34 & 116.

F The property of defendant-respondent no. 1 temple was endowed
by the forefathers of the plaintiff-appellant. The father of the appellant
and thereafter the appellant were trustees of the temple and were
managing the temple property. In 1968, the State Charity Commissioner
appointed a new set of trustees and a· Chief Executive Officer for the
temple and removed the appellant from the trusteeship. The suit
G property, which is situated adjoining to the temple property, was let
out on rent to defendant-respondent no. 2 by the appellant. Respondent
no. 2 paid rent to tlie appellant till 1969. Thereafter, at the instance
of respondent no. I, respondent no. 2 issued a rent notr. in favour of
the temple attorning the latter as the landlord of the suit property.
H Respondent no. 1 claimed the suit property on the basis of being part·
450
R.V.F. VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAMI AND V.P. TEMPLE 451
of the temple property. Appellant filed a suit for declaration of title, A
arrears of rent for three years immediately preceding the filing of the
suit and possessio:i of the suit property before Trial Court. Relying
upon the oral and documentary evidences, the trial court decreed the
suit in favour of the appellant. This was affirmed by the first appellate
court. The High Court, in second appeal, reversed the findings of the B
courts below holding that no reliance could be placed upon the
documentary evidence produced by the appellant before the lower
courts.

Allowing the appeal, the Court
c
HELD: 1. A second appeal in the High Court can be entertained
only on substantial questions of law and not otherwise. Instead of
proceeding to decide the issues arising in the suit, the High Court
assumed the second appellate jurisdiction by erroneously' assuming
the fact that property belongs to the temple, while framing the D
substantial questions of law. The question to be determined in the case
was whether the appellant or the temple had the title to the suit
property. The questions framed by the High Court did not arise as
substantial questions of law based on the concurrent findings by the
two courts below. The judgment of the High Court deserves to be set E
aside on this ground. [459-B-D]

2. Section 34 of the Indian Evidence Act, 1872 declares relevant
the entries in the books of account regularly kept in the course of
business whenever they refer to a matter into which the Court has to
enquire. The courts of fact subordinate to the High Court, have not F
felt the need of any further corroboration before acting upon the
entries in the ledger books made by the deceased father of the
appellant. So far as the entries made by the appellant are concerned,
he has deposed to making the entries and corroborated the same by
his own statement. The appellant has been believed by the trial court G
and the first appellate court and his statement has been found to be
enough corroboration of the entries made by him. No question of law
arose as would enable the High Court to reverse that finding. The
entries amply prove that for a length of time, upto the year 1959, the
appellant's deceased father, and then the appellant was collecting the H
452 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A rent of the suit property claiming to be the landlord from respondent
no. 2 inducted as tenant by them. They were in possession of the suit
property through their tenant, respo!Jdent no. 2. The High Court has
erred in ruling out the books from consideration on the ground that
the same were not duly maintained or were not proved in the absence
B of the maker having stepped in the witness box. [460-E-H, 461-A, BJ

3.1 An objection as to the admissibility of evidence should be taken
ordinarily when it is tendered and not subsequently. 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
C 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
D 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
E proof and thereby removing the objection raised by the opposite party,
is availa hie to the party leading the evidence. Such practice and procedure
is fair to both the parties. A 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
F admissible in evidence. (463-G, 464-B-F)
Padman & Ors. v. Hanwanta & Ors., AIR (1915) PC 111 and P.C.
Purushottama Reddiar v. S. Perumal, [1992) 2 SCR 646, referred to.

The Roman Catholic Mission v. The State of Madras & Anr., AIR
G (1966) SC 1457, distinguished.
3.2 The photocopy of the order passed by the Assistant
Commissioner and the photocopy of the rent agreement between the
appellant and the tenant-respondent were admitted in evidence without
H any objection by the two courts below. The High Court erred in
R. V.F. VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAMI AND V.P. TEMPLE 453
.r, holding these documents inadmissible being photocopies and the A
originals of the same were not produced. None of the two courts below
appeared to have felt any difficulty in reading the documents and
understanding and appreciating its contents. The High Court, if it felt
any difficulty in comfortably reading of the photocopies, should have
said so at the time of hear~ng and afforded the parties an opportunity B
of either producing the originals or a readable copies of the documents.
Nothing such was done. The High Court has not even doubted the
factum of the contents of the documents having been read by the two
courts below, drawn deductions therefrom and based their finding of
facts on the documents as well. [465-G-H, 466-A]
c
3.3 The photocopy of the certified copy of the order passed by the
Assistant Commissioner H.R. and C.E. (Admn.) Department in exercise
of its jurisdiction under section 63 of the Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959 held that the temple is not the
owner of the suit property. This has become final. The photocopy of D
the order was marked as an exhibit without any objection by the
temple respondent. An order of the Charity Commissioner is not per
se the evidence of title inasmuch as the Charity Commissioner is not,
under the law, competent to adjudicate upon questions of title relating
to immovable property which determination lies within a domain of E
a civil court. However, still the order has relevance as evidence to show
that the property forming subject matter of the order of the Charity
Commissioner was claimed by the temple to be its own property. The
temple failed in proving its claim. Consequence of this would be that
the attornment by the tenant-respondent in favour of the temple F
during the continuance of tenancy was not valid. The tenant could not
attorn to the temple treating the latter to be the owner since he was
inducted by the appellant and the estoppel flowing from Section 116
of the Indian Evidence Act, 1872 operated against him. [462-E-F]

3.4 In the property tax register, the appellant and his predecessors G
were shown to be the owners of the. suit property. An e.ntry in the
municipal record is not evidence of title. The entry shows the person
who is liable to pay rates and taxes to the municipality. If the property
belonged to the temple, the temple would have taken steps for having
its own name mutated into the municipal records and paid taxes or H
454 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A claimed exemption from payment of taxes, which, was not done. The
temple has not been able to produce any evidence, oral or documentary,
to prove its title to the suit property. The attornment by the tenant in
favour of the temple and payment of rent to the temple after 19~9 or
the payment of the property tax by the temple to the municipal
B authorities after 1969 does not establish the title to the temple of the
suit property. These documents are not of much evidentiary value as
these documents came into existence only after the dispute had arisen
between the parties. In the absence of any other lawful claimant, the
appellant, on the strength of the documents produced, was rightly held
to be the owner by the courts below the High Court. The attornment
C by the tenant in favour of the temple was also rightly held to be invalid.
The appellant would, therefore, be entitled to recover possession of the
suit property and the arrears of rent. (466-E-H, 467-A-C]

4.1 In a suit for recovery of possession based on title, it is for the
D plaintiff to prove his title and satisfy the Court that he, in law, is
entitled to dispossess the defendant from his possession over the suit
property and for the possession to be restored with him. There is an
essential distinction between· burden of proof and onus of proof.
Burden of proof lies upon a person who has to prove the fact and which
E never shifts. Onus of proof shifts. Such a shifting of onus is a continuous
process in the evaluation of evidence. In a suit for possession based on
title, once the plaintiff has been able to create a high degree of
probability so as to shift the onus on the defendant, it is for the
defendant to discharge his onus and in the absence thereof the burden
of proof lying on the plaintiff shall be held to have been discharged so
F as to amount to proof of the plaintifrs title. (468-D-F)

Raghavamma & Anr. v. Chenchamma Anr., AIR (1964) SC I36,
relied on.

G Bater v. B., (1950] 2 All ER 458 and Homa/ v. Neuberger P. Ltd,
(1956) 3 All ER 970, referred to.

~Sarkar on Evidence 15th Edition, referred to.

4.2. The appellant-plaintiff has not been able to produce any deed
H of title directly lending support to his claim for title of the suit property.
R.V.F. VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAMI AND V.P. TEMPLE 455
The respondent-defendant temple too has no pr~of of its title. Being A
a civil case, the plaintiff cannot be expected to prove his title beyond
any reasonable doubt. A high degree of probability lending assurance
of the availability of title with the plaintiff would be enough to shift
the onus on the defendant and if the defendant does not succeed in
shifting back, the onus, the plaintifrs burden of proof can safely be B
deemed to have been discharged. The appellant had succeeded in
shifting the onus on the respondent temple and therefore the burden ·
of proof, which lay on the appellant, had stood discharged. The High
Court, in exercise of its limited jurisdiction under section 100 CPC,
ought not to have entered into the evaluation of evidence afresh. The
High Court has interfered with a pure and simple finding of fact based C
on appreciation of oral and documentary evidence which the High
Court ought not to have done. (468-G-H, 469-A, BJ

4.3. No question of law much less a substantial question of law
arose in the case worth being gone into by the High Court in exercise D
of its second appellate jurisdiction under Section 100 CPC. The High
Court was bound by the findings of fact arrived at by the two courts
below and should not have entered into the exercise of re-appreciating
and evaluating the evidence'. The findings of fact arrived at by the
courts below did not suffer from any perversity. There was no non- E
reading or mis-reading of the evidence. A high degree of preponderance
of probability proving title to the suit property was raised in favour
of the appellant and the courts below rightly concluded the burden of
proof raised on the plaintiff having been discharged while the onus
shifting on the defendant remaini~g undischarged. (470-C-E]
F
CIVIL APPELLAtE JURISDICTION: Civil Appeal No. 10585 of
1996.

From the Judgment and Order dated 12.4.96 of the Madras High
Court in S.A. No. 316 of 1983.
G
R. Nedumaran, Beno Bencigar, Ms. M.F. Humayunisa and M.A.
Chinnasamy for the Appellant.

Subramonium Prasad, R. Gopala Krishnan and Abbay Kumar for the
Respondents. H
456 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A The Judg~ent of the Court was delivere 'l hy

BHAN, J. : Present appeal has been filed against the judgment and
decree in Second Appeal No. 316 of 1983 dated 12.4.1996 by the High
Court of Judicature at Madras. By the impugned order the ~igh Court has
B set aside the judgment and decree of the courts below as a result of which
the suit filed by the plaintiff-appellant (hereinafter referred to as 'the
appellant') has been ordered to be dismissed.

A brief reference to the pleadings of the parties may be made to
C appreciate the points raised in this appeal.

Appellant claimed himself to be the owner· of the property bearing
No. D.No. 40 comprised in T.S.No. 201, Block No. 4, Ward No. 5 in the
Municipal CitY ofTirupur. That M.R. Arunachala Mudaliar, defendant No.
2 (hereinafter referred to as the 'tenant') was inducted as a tenant in the·
D year 1952 by his. father at a rent of Rs. 300 which was enhanced to Rs.
400 in the year 1965. Arulmigu Visweswaraswamy & Veeraragava
Perumal Temples, defendant No.I (hereinafter referred to as the 'temple')
also claim ownership to the property. Appellant claimed himself to be a
hereditary trustee of the temple. Originally, from 1946-47 till 1959, the
E property stood recorded in the municipal register in the name of three
persons, namely, K.N. Palanisami Gounder, R.V. Easwaramurthi Gounder
and A. Narayaanaswami Gounder. Easwaramuf1hi Gounder was the father
of the appellartt. After the death ofEaswaramurtlhi Gounder, father of the
appellant, the name of the appellant came to be re:gistered in the Municipal
F record alongwith the other two persons. In an oral family partition the
property came to the share of the appellant and thereafter the names ofK.N.
Palanisami Gounder and A. Narayaanaswami Gtmnder were removed from
the municipal register and the appellant alone came to be recorded as the
sole owner of the suit property in the municipal record. That temple taking
G advantage of the litigation pending between it and the appellant in respect
of the trusteeship of the temple, laid claim to the suit property. Te.nant paid
· rent till 1969 to the appellant and thereafte~ attomed as a tenant to temple
and started paying rent to it. Appellant filed the suit for declaration of title,
arrears of rent for three years immediately preceding the filing of the suit
H and possession of the suit premises.
R. V.F. VENJ<ATACHALA GOUNDER v. ARULMIGU VJSWESARASWAMI AND V.P. TEMPLE [BHAN, J.] 457

The temple-defendant No. I, in its written statement, admitted that the A
father of the appellant and after his death the appellant has been a trustee
of the temple. In 1968 new set of trustees were appointed by the Charity
Commissioner and the Executive Officer took charge of the temple. The
temple further alleged that the suit property belonged to the temple and
the appellant wrongly claimed himself to be the absolute owner of the B
property. The assessment stood in the name of the appellant as Dharmakartha
and not in his individual capacity. From 1969 onwards, tenant began to
pay rent to temple and the rate of rent was enhanced from Rs. 42.50 to
Rs. 129 per month. On 19th July, 1975 the tenant executed a lease deed
in favour of the temple. That appellant was not entitled to the suit property C
and was estopped from denying the title of temple. The tenant-defendant
No.2, in his written statement, took the stand that he became the tenant of
the suit property under the temple. He admitted that he had been paying
rent to the appellant but from the year 1969 onward he started paying rent
to the temple. That the claim of the appellant for arrears of rent was not D
tenable and the suit for declaration and for arrears of rent was not
maintainable.

On the pleadings of the parties the Trial Court framed three issues,
viz., (i) relating to the title of the suit property; (ii) entitlement of the E
appellant to receive rent, and (iii) entitlement of the appellant to get
possession.

By way of oral evidence appellant stepped in the witness box as
PW l. On behalf of the temple, Rajapandian, an employee of the temple,
stepped in the witness box as DWI and the tenant appeared as his own F
witness as DW2. By way of documentary evidence appellant produced
Exhibit Al to Exhibit A34 consisting of books of accounts; copies of the
municipal registers; receipts of payment of property tax paid in the
municipal committee; documents showing collection of rent; Exhibit A-
30 dated 14.10.1969 is the order of the Assistant Commissioner, H.R. and G
C.E. Administration Department, Coimbatore in which it has been held that
the suit property does not belong to the temple. Exhibit A-34 dated
6. 7.1970 is a rent agreement executed between the appellant and tenant in
respect of the suit property. Documents A-30 and A-34 are the photostat
copies of the original; they were admitted in evidence and marked as H

' '
458 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A exhibits without any objection from other side. Temple produced Exhibits
BI to B46 pertaining to receipt of rent from the tenant and payment of
property tax to the Municipal Committee after the year 1969.

Trial Court relying upon the oral as w~ll as documentary evidence
B held that the appellant was the owner of the property and that respondent
no. 2 was the tenant of the appellant. Appellant was held to be the owner
and entitled to recover the possession as well as the arrears of rent for three
years immediately preceding the filing of the suit. Temple filed an appeal
before t1te District Judge, Coimbatore which was dismissed. Aggrieved
C temple filed the second appeal in the High Court. High Court reversed the
judgment and decree of the courts below and held that no reliance could
be placed upon the documentary evidence. The books of accounts produced
• by the appellant were not kept in regular course of business and therefore
no reliance could be placed on them. Entry made of property in the
municipal records in the name of a person was not evidence of the title
D of that person to the property. That the courts below erred in admitting
Exhibit A-30 and A-34 in evidence as these were photostat copies.
Documents being photostat copies co.uld not be admitted in
evidence without producing the originals. That Exhibit A-34 was not even
readable.
E
Learned Counsel for the parties have been heard at length.

While entertaining the second appeal the High Court framed the
following three questions as substantial questions of law as arising for its
F consideration:

"I. Whether a person who has been in possession of the temple
as an hereditary trustee can claim title to one of the items of the
property belonging to the temple as his own?

G 2. Whether the certificate issued by the Assistant Commissioner,
Hindu Religious and Charitable Endowments is conclusive as the
question of title to the immovable properties belonging to the
temple?

H 3. Whether the right of a temple can be negatived on the mere
R. V.F. VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAMI AND V.P. TEMPLE [BHAN,!.) 459
strength of the assessment register standing in the name of the A
plaintiff/Respondent or any other person?"
[Emphasis supplied]

All the three questions framed proceed ,on the assumption as if the
property belongs to the temple whereas the findings of the courts below B
were to the contrary. Second appeal in the High Court can be entertained
only on substantial questions of law and not otherwise. The point in issue
was as to whom the property belongs. Instead of proceeding to decide the
issues arising in the suit the High Court assumed second appellate
jurisdiction by erroneously assuming the fact that property belongs to the C
temple while framing the substantial questions of law. High Court seems
to have unwitting fallen into a serious error in doing so. As to whether the
appellant or the temple had the title to the property in suit was the question
to be determined in the case and the High Court erred in assuming and
proceeding on an assumption that the property belonged to the temple. The
questions framed by the High Court did not arise as substantial questions D
of law based on the fmdings recorded by the courts below - concurrently
in this case. In our opinion, the High Courts' judgment deserves to be set
aside on this short ground and the case remitted back to the High Court
for decision afresh and in accordance with the law, after re-framing only
such substantial questions of law, if any, as do arise in the appeal. But E
since the suit was filed in the year 1978 and the parties have been in
litigation for the last 25 years, we are refraining from remitting the case
back to the High Court for re-decision on merits.

Onus to prove title of the property undoubtedly is on the person
asserting title to the property. Appellant produced Ledger Books A9, Al I, F
Al3, Al5, Al?, Al9, A21, A23, A25 & A27 for the years 1952, 1953,
1954, 1955, 1957, 1958, 1959, 1960, 1962& 1964respectivelymaintained
by the father of the appellant up to 1959 and thereafter by him. Exhibits
AlO, Al2, Al4, Al6, Al8, A20, A22, A24,' A26 & A28 are the entries
ofreceipt ofrent from tenant made at pages 155, 81, 57, 92, 115, 137, 180, G
16, 171and139 of Ledger Books marked A9, All, Al3, Al5, Al?, Al9,
A21, A23, A25 & A27 respectively. In his statement in court, appellant
stated that the ledgers were maintained properly and were submitted to the
income tax authorities. The Ledger Books bear the seal of the department
of income tax. That the books were maintained by his father till 1959 and H
460 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A after his death the appellant has maintained the Ledgers. Courts below
accepted that the books were maintained in regular course of business but
the High Court ruled out the ledger accounts from .consideration on the
ground that day books supporting the ledger entries were not produced.
That the person who made the e~ies in the ledger books was not produced
B which caused a doubt as to whether the books were kept in due course or
not. We do not agree with the fin~ng recorded by the High Court. On
a perusal of the statement of the appellant and the books of accounts it
becomes abundantly clear that the accounts were duly maintained by the
father of the appellant till 1959 and thereafter by the appellant for every
C year separately and were submitted to the department of income tax with
annual returns. The books bear the seal of the income tax department.
The~e facts deposed to by the appellant under oath were not even
challenged in cross-examination. No question was asked from the
appellant to the effect that the books were not maintained by him or by
his father properly. No questions were asked from him in cross-
D examination about the authenticity of the books or the entries made therein.
In the ledger, for each year, there is an entry regarding receipt of rent. In
our view, the books were maintained properly and regularly and there is
no reason to doubt their veracity.

Section 34 of the Evidence Act declares relevant the entries in books
E
of account regularly kept in the course of business whenever they refer to
a matter into which the court has to enquire. When such entries are shown
to have been made in the hands of a maker who is dead, the applicabifity
of clause (2) of Section 32 of the Evidence Act is attracted according to
which the statement made by a dead person in the ordinary course of
F business and in particular when it consists of any entry or memorandum
made by him in books kept in the ordinary course of business etc. is by
itself relevant. The maker of the entry is not obviously available to depose
incorporation of the entry. In a given case, depending on the facts and
circumstances brought on record, the Court of facts may still refuse to act
G on the entry in the absence of some corroboration. In the present case the
courts of fact, subordinate to High Court, have not felt the need of any
further corroboration before acting upon the entries in the ledger books
made by the deceased father of the appellant. So far as the entries made
by the appellant are concerned, he has deposed to making of the entries
H and corroborated the same by his own statement. The appellant has been
R.V.F. VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAM! AND V.P. TEMPLE [BHAN, J.) 461

believed by the trial Court and the first appellate Court and his statement A
has been found to be enough corroboration of the entries made by him.
Here again no such question of law arose as would enable the High Court
· to reverse that finding. The entries amply prove that for a length of time,
upto the year 1959 the appellant's deceased father, and then the appellant,
was collecting the rent of the suit property claiming to be the landlord from B
the defendant No.2 inducted as tenant by them. They were in possession
of the property through their tenant, the defendant No.2.'

We are definitely of the opinion that the High Court has erred in
ruling out the books from consideration on the ground that the same were
not duly maintained or were not proved in the absence of the maker having C
stepped in the witness box.

A2 is the extract of Property Tax Demand Register. A3 is the receipt
of payment of property tax by the appellant to the Municipal Committee.
The name of the appellant is· entered in ownership column of Municipal D
record. Earlier the entries were in the name of his father, K.N.Palanisami
Gounder and A.Narayaanaswami Gounder. A3 l is the letter/notice issued
by the Commissioner, Tirupur Municipality to the appellant in the
complaint filed by one Subramaniam Tirupur under The Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 (hereinafter referred to E
as 'the Act'). A32 is the reply filed by the appellant to the said notice.
A33 is the postal acknowledgement signed by the Commissioner of the
receipt of the reply sent by the appellant. A30 is the photo copy of the
order passed by Assistant Commissioner H.R. and C.E.(Admn.) Department,
Coimbatore in exercise of its jurisdiction under Section 63 of the Act in
which it has been held that temple is not the owner of the property in F
dispute. A34 is the photo copy of the rent agreement executed between
the appellant and the tenant-respondent No.2. The said rent note has also
been attested as witness by the Executive Officer of the Municipal
Committee. Tenant while appearing as DW2 admitted having signed rent
note, Exhibit A34 in favour of the appellant. G

The High Court has, by entering into the question of admissibility in
evidence of the abovesaid two very material pieces of documentary
evidence which were admitted in evidence without any objection when
they were tendered in evidence and taken into consideration by the two H
462 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A courts below while evaluating evidence and recording findings of facts,
excluded the documents from consideration. Was it permissible for the
High Court to do so? ·:

One document N30 is the photocopy of a certified copy of the
B decision given by Charity Commissioner. This document was tendered in
evidence and marked as an exhibit without any objection by the defendants
when this was done. The plaintiff has in his statement deposed and made
it clear that the certified copy, though available, was placed on the record
of another legal proceedings and, therefore, in the present proceedings hi;
was tendering the photocopy. There is no challenge to this part of the
C statement of the plaintiff. If only the tendering of the photocopy would
have been objected to by the defendant, the plaintiff would have then and
there sought for the leave of the Court either for tendering in evidence a
certified copy freshly obtained or else would have summoned the record
of the other legal proceedings with the certified copy available on record
D for the perusal of the Court. It is not disputed that the order of Charity
Commissioner is a public document admissible in evidence without formal
proof and certified copy of the document is admissible in evidence for the
purpose of proving the existence and contents of the original. An order
of Charity Commissioner is not per se the evidence of title inasmuch as
E the Charity Commissioner is not under the law competent to adjudicate
upon questions of title relating to immovable property which determination
lies within the domain of a Civil Court. However, still the order has
relevance as evidence to show that the property forming subject matter of
the order of the Charity Commissioner was claimed by the temple to be
F its property but the temple failed in proving its claim. If only the claimant
temple would have succeeded, the item of the property would have been
directed by the Charity Commissioner to be entered into records as
property of the charity, i.e. the temple, which finding and the entry so
made, unless dislodged, would have achieved a finality. On the contrary,
the appellant herein, who claimed the property to be his and not belonging
G to the charity, succeeded in the claim asserted by him.

The other document is the rent note executed by defendant No.2 in
favour of plaintiff. Here also photocopy of the rent note was produced.
The defendant No.2 when in witness box was confronted with this
H document and he admitted to have executed this document in favour of the
R.V.F. VENKATACHALA GOUNDER v. ARULMIGU VJSWESARASW AMI AND V.P. TEMPLE [BHAN, J.) 463

plaintiff and also admitted the existence of his signature on the document A
It is nobody's case that the original rent note was not admissible in
evidence. However, secondary evidence was allowed to be adduced
without any objection and even in the absence of a foundation for admitting
secondary evidence having been laid by the plaintiff.
B
The abovesaid facts have been stated by us in somewhat such details
as would have been otherwise unnecessary, only for the purpose of
demonstrating that the objection raised by the defendant-appellant before
the High Court related not to the admissibility of the documentary evidence
but to the mode and method of proof thereof.
c
Order 13 Rule 4 of the CPC provides for every document admitted
in evidence in the suit being endorsed by or on behalf of the Court, which
endorsement signed or initialed by the Judge amounts to admission of the
document in evidence. An objection to the admissibility of the document
should be raised before such endorsement is made and the Court is obliged D
to form its opinion on the question of admissibility and express the same
on which opinion would depend the document bei~g endorsed as admitted
or not admitted in evidence. In the latter case, the document may be
returned by the Court to the person from whose custody it was
produced. E:
The learned counsel for the defendant-respondent has relied on The
Roman Catholic Mission v. The State of Madras & Anr., 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 F
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 G
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 H
464 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A 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
B is irregular cannot be allowed to be raised at any stage subse9-uent to the
marking of the document as an exhibit. The later 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 wouldbe
C 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 h<1:nd, 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
D 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.
E Such practice and procedure is fair to both the parties. Out of the two types
of objections, referred to hereinabove, in the later 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
F case, acquiescence would be no bar to raising the objection in superior
Court.

Privy Council in Padman and Others v. Hanwanta and Others, AIR
(191_5) PC 111 did not permit the appellant to take objection to the
admissibility of a registered copy of a will in appeal for the first time. It
G was held that this objection should have been taken in the trial court. It
was observed:

"The defendants have now appeal to the Majesty in Council, and
the case has been argued on their behalf in great detail. It was
H. urged in the course of the argument that a registered copy of the
R.V.F. VENKATACHA!-A GOUNDER v. ARULMIGU VISWESARASWAMI AND V.P. TEMPLE [BHAN, J.) 465

will of 1898 was admitted in evidence without sufficient foundation A
being led for its admission. No objection, however, appears to
have been taken in the first court against the copy obtained from
the Registrar's office being put in evidence. Had such objection
being made at the time, the District Judge, who tried the case in
the first instance, would probably have seen that the deficiency B
was supplied. Their lordships think that there is no substance in
the present contention."

Similar is the view expressed by this Court in P.C.Purushothama
Reddiar v. S.Perumal, [1972] 2 SCR 646. In this case the police reports
were admitted in evidence without any objection and the objection was C
sought to be taken in appeal regarding the admissibility of the reports.
Rejecting the contention it was observed:

"Before leaving this case it is necessary to refer to one of the
contention taken by Mr. Ramamurthi, learned counsel for the. D
respondent. He contended that the police reports referred to
earlier are inadmissible in evidence as the Head-constables who
covered those meetings have not been examined in the case.
Those reports were marked without any objection. Hence it is not
open to the respondent now to object to their admissibility - see E
Bhagat Ram v. Khetu Ram and Anr., AIR (1929) PC llO."

Since documents A30 and A34 were admitted in evidence without
any objection, the High Court erred in holding that these documents
were inadmissible being photo copies, the originals of which were not F
produced.

So is the observation of the High Court that the photocopy of the rent
note was not readable. The photocopy was admitted in evidence, as already
stated.. It was read by the trial court as also by the first Appellate Court.
None of the said two courts appear to have felt any difficulty in reading G
the document and understanding and appreciating its contents. May be,
that the copy had fainted by the time the matter came up for hearing before
the High Court. The High Court if it felt any difficulty in comfortable
reading of the document then should have said so at the time of hearing
and afforded the parties an opportunity of either producing the original or H
466 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A a readable copy of the document. Nothing such was done. The High Court
has not even doubted the factum of the contents of the document having ·
been read by the two courts below, drawn deductions therefrom and based
their finding of fact on this document as well. All that the High Court has
said is that the document was inadmissible in evidence being a photocopy
B and with that view we have already expressed our disagreement. Nothing,
therefore, turns on the observation of the High Court that the document
was not readable when the matter came up for hearing before it.

Exhibit A34 is a decision of the Deputy Commissioner in exercise
C of his jurisdiction under the Act. He has recorded a finding that the temple
is not the owner of the property in dispute. This decision has become final
between the parties. This document has relevance at least to the extent
that the temple was held by Charity Commissioner to be not the owner of
the property. Consequence of this would be that the attornment by the
-tenant in favour of temple during the continuance of tenancy in favour of
D the appellant was not valid. The defendant No.2 had attomed as a tenant
to temple treating the latter to be the owner which it could not do as he
was inducted as tenant by the appellant and the estoppel flowing from
Section 116 of the Evidence Act operated against him.

E From the other documents produced by the appellant i.e; the account
books and Exhibit A34 rent note, it is proved that tenant had always been
treating the appellant as landlord and paying rent to him. Only after l 969
tenant started paying rent to the temple treating it to be the landlord. In
the property tax register the appellant and prior to that his predecessors
have been shown to be the owners. An entry in the municipal record ;s
F not evidence of tit!.e. The entry shows the person who was held liable to
pay the rates and taxes to the municipality. The entry may also, depending
on the scope of the provision contemplating such entry, constitute evidence
of the person recorded being in possession of the property. Such entries
spread over a number of years go to show that the person entered into the
G records was paying the tax relating to the property and was being
acknowledged by the local authority as the person liable to pay the taxes.
If the property belonged to the temple, there is no reason why the temple
would not have taken steps for having its own name mutated into the
municipal records and commencing payment of taxes or claimed exemption
H from payment of taxes if the charity was entitled under the law to
R.V.F. VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAMI AND V.P. TEMPLE [BHAN, J.) 467
exemption from payment of taxes. Temple has not been able to produce A
any evidence oral or documentary to prove its title to the property. Only
because tenant attomed to the temple and started paying rent to the temple
in 1969 or that the temple paid the property tax to the municipal committee
after 1969 does not establish its title to the property in question. These
documents are not of much evidentiary value as these documents came in B
existence after the dispute had arisen between the parties. In the absence
of any other lawful claimant the appellant on the strength of the documents
produced by was rightly held to be the owner by the Courts below the High
Court. Attomment by the tenant in favour of the temple was also rightly
held to be invalid. The appellant, in our opinion, would be entitled to C
recover possession well as the arrears of rent.

The High Court has, for the purpose of non-suiting the plaintiff,
placed reliance on Brahma Nand Puri v. Neki Pur since deceased
represented by Mathra Puri & Anr., AIR (1965) SC 1506, wherein it has
been held that in a suit for ejectment the plaintiff has to succeed or fail D
on the title he establishes and if he cannot succeed on the strength of his
title his ~mit must fail notwithstanding that the defendant in possession has
no title to the property. The law has been correctly stated and the High
Court rightly felt bound to follow the law as laid down by this Court.
However, the question is one of applicability of the law so stated by this E
Court.

Whether a civil or a criminal case, the anvil for testing of 'proved',
'disproved' and 'not proved', as defined in Section 3 of the Indian
Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when,
if considering the matters before it, the Court either believes it to exist, or F
considers its existence so probable that a prudent man ought, under the
circumstances of a particular case, to act upon the supposition that it exists.
It is the evaluation of the result drawn by applicability of the rule, which
makes the difference. "The probative effects of evidence in civil and
criminal cases are not however always the same and it has been laid down G
that a fact may be regarded as proved for purposes of a civil suit, though
the evidence may not be considered sufficient for a conviction in a criminal
case. BEST says: There is a strong and marked difference as to the effect
of evidence in civil and criminal proce~dings. In the former a mere
preponderance of probability, due regard b~ing had to the burden of proof, H
468 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A is a sufficient basis of decision: but in the latter, 'especially when the
offence charged amounts to treason or felony, a rimch higher degree of
assurance is iequired. (BEST, S. 95). While civil cases may be proved by
a mere preponderance of evidence, in criminal cases the prosecution must
prove the charge beyond reasonable doubt." (See Sarkar on Evidence, 15th
B Edition, pp.58-59) In the words of Denning LJ (Bater v'. B, (1950) 2 All
ER 458,459) "It is true that by our law there is a higher standard of proof
in criminal cases then in civil cases, but this is subject to the qualification
that there is no absolute standard in either case. · In criminal cases the
charge must be proved beyond reasonable doubt, but there may be degrees
of proof within that standard. So also in civil cases there may be degrees
C of probability." Agreeing with this statement oflaw, Hodson, LJ said "Just
as in civil cases the balance of probability may be more readily fitted in
one case than in another, so in criminal cases proof beyond reasonable
doubt may more readily be attained in some cases than in others." (Hornal
v. 'Neuberger P.''Ltd., (1956) 3 All ER 970, 977.
D ·, : ,,.. . , ., , "'~ ·: '
•• • r In a suit for recovery of possession based on title it is for the plaintiff I

'\
to !prove his 1 title·arid~satisfy.the Court that he, in law, is entitled to
dispossess the defendant from hi's possession over the suit property and for
the possession· to be restored with hint However, as held in A. Raghavamma
E &Anr. v:Chenchamma & Anr'., AIR(l964)·SC 136, there is an essential
distinction between burden of proof and onus of proof: burden of proof
lies upon a person who has to prove the fact and which never shifts. Onus
of proof shifts.' Such a shifting of ontiS ·is· a: continuous process in the
evaluation of evidence.' In our opinion, in a suit for possession based on
F title· once the plaintiff has been able to create ·a high degree of probability
so as.to shift the onus on the defendant it is•forthe·defendant to discharge
hiS onus and in.the absence thereof the burden ·of prooflymg on the plaintiff
shall :be heldito. have been discharged so as· to' amount 'to proof 'of the
phiihtiff.s 1title: 1 j , i:H ;.<,·. ,· ·• · . ,, ·, .: : 11 · ·
I
iHtt ii Ii.) iH ',))~ 1 )lJ1 t? t. ~ rJ'...t,,i!·~ J 1'' l"_..:,q •: :• 1
• .i.., _ ;-. t; ' I~ ~J 1?

G 1· .,,,tlil the•present casetthe.trial- Court anchthe·first appellate Court•have
rtoted1that,,the1plairttiff,has 1notrbeen ·able lto :produce any deed .of title'
directly. lending !SUpport tO ;his1 claim for: title ·and Cat the -Same 'time-the'
defendant;too :has no1proof.of his title :mllch less eveil.1 ah· insignia of title.
Being a oivilcase,"!the plain~itT.cannot be.expected to prove his title beyond1
H any . reasonable:(:loubt; a•high idegree; of,piobabilityilending, assurance ·of
R.V.F. VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAMI AND V.P. TEMPLE [BHAN, JJ 469

the availability of title with him would be enough to shift the onus on the A
defendant and if the defendant does not succeed in shifting back the onus,
the plaintiffs burden of proof can safely be deemed to have been
discharged. In the opinion of the two Courts below, the plaintiff had
succeeded in shifting the onus on the defendant and, therefore, the burden
of proof which lay on the plaintiff had stood discharged. The High Court, B
in exercise of its limited jurisdiction under Section 100 of CPC, ought not
to have entered into the.evaluation of evidence afresh. The High Court
has interfered with a pure and simple finding of fact based on appreciation
of oral and documentary evidence which the High Court ought not to have
done.
c
The suit property, which is a shop, is situated just adjoining the
property owned by the temple. It has come in the evidence that the
property which is now owned by the temple was at one time owned by
the forefathers of the plaintiff and they made an endowment in favour of
the temple. The father of the plaintiff, and then the plaintiff, continued D
to be the trustees. The trouble erupted when in the late sixties the Charity
Commissioner appointed other trustees and Chief Executive Officer of the
trust dislodging the plaintiff from trusteeship. The plaintiff staked his
claim to trusteeship of the temple submitting that the office of the trustee
of the temple was hereditary and belonged to the plaintiff. The plaintiff E
was managing the trust property as trustee while the property adjoining to
the property of the temple, i.e. the suit property, was in possession of the
plaintiff as owner occupied by the tenant, the defendant No.2., inducted
as such by the father of the plaintiff. At the instance of the Chief Executive
Officer of the trust, the defendant No.2, during the continuance of the F
tenancy in favour of the plaintiff, executed a rent note in favour of the
temple attoming the latter as his landlord. This the defendant no.2 could
not have done in view of the rule of estoppel as contained in Section 116
of the Evidence Act. It was at the instance of the newly appointed trustees
and the Chief Executive Officer who on behalf of the temple started G
claiming the suit property in occupation of the tenant, defendant No.2, to
be trust property belonging to the temple. But for this subsequent
developme~t the title of the plaintiff to the suit property would not have
been in jeopardy and there would have been no occasion to file the present
suit.
H
470 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A The learned counsel for the temple, defendant-respondent No.I,
faintly urged that the appellant being a trustee of the temple was trying to
misappropriate the property belonging to the temple. For such an
insinuation there is neither any avennent in the written statement nor any
evidence laid. Such a submission made during the course of hearing has
B been nqted by us only to be summarily rejected. We have already held
that the appellant is the owner of the suit property entitled to its possession
and recovery of arrears of rent from the defendant No.2.

The offshoot of the above discussion is that no question of law much
less a substantial question of law arose in the case worth being gone ·into
C the by the High Court in exercise of its second appellate jurisdiction under
Section l 00 of the CPC. The High Court was bound by the findings of
fact arrived at by the two courts befow and should not have entered into
the exercise ofre-appreciati'ng and evaluating the evidence. The findings
of facts arrived at by the courts below did not suffer from any perversity.
D There was no non-reading or misreading of tbe evidence. A high degree
of preponderance of probability proving title to the suit property was raised
in favour of the appellant and the courts below rightly concluded the
burden of proof raised on the plaintiff having been discharged while the
onus shifting on the defendant remaining undischarged. The judgment of
E the High Court cannot be sustained and has to be set aside.

For the reasons stated above, the appeal is accepted. Judgment and
.,
decree of the High Court is set aside and that of the trial court as confinned
by the first appellate Court is restored. No costs.

F B.S. Appeal allowed.

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