Gopal Das v. Thakurji

The public document sections carry a real practical privilege. A public document may be proved by a certified copy; the court is bound to presume the genuineness of a duly certified copy; the original need not be produced, and the officer need not be called. Whether a document is public is therefore worth a great deal to the party relying on it, and registration under the Registration Act is the argument most often used to claim that status.

Gopal Das is the decision that refuses to let registration do that work.

The question was whether an original receipt executed by an individual and registered under the Indian Registration Act became a public record, so that a certified copy of it could be given in evidence.

Their Lordships held that an original receipt executed by an individual and registered under the Indian Registration Act is not a public record or public document within the meaning of the section, because under s. 61(2) of the Registration Act the original has to be returned to the party.

Step one — start from what a public record is. Public records are those records which a government unit is required by law to keep, or which it is necessary to keep in the discharge of duties imposed by law. The test is the legal duty to keep the record, not the fact that a public officer once handled the paper.

Step two — apply the test to registration. A registered private instrument fails the test at exactly this point. The registry does not keep the instrument; it is returned to the party under s. 61(2) of the Registration Act. What the registry keeps is its own record, and the private deed is not it.

Step three — the consequence. Because the deed is not a public document, s. 74 of the old Act and the certified-copy machinery in s. 77 are unavailable: the certified copy is not admissible, and the party must prove the document in the ordinary way.

The unsettled edge, which an answer should acknowledge. The position is not uniform across every kind of instrument. A private waqf deed recorded in the office of the sub-registrar has been treated as a public document. The Gauhati High Court, holding that a private sale deed registered under the Registration Act is not a public document and that a certified copy is therefore not admissible under s. 77, overruled its own earlier decision and followed Gopal Das. Where an examiner gives you a registered private deed, the safe answer follows Gopal Das and notes the contrary line.

Use Gopal Das for the proposition that registration does not make a private document public, which is the single most-tested point on BSA s. 74.

Build the answer on the statutory contrast. Public documents are prepared by public servants in the discharge of their public duties; they are open to public inspection in a public office at appointed times on payment of a fee; their certified secondary copies are admitted in judicial proceedings, and indeed public documents are ordinarily proved by such copies, whose genuineness the court is bound to presume. Private documents are all other documents, and must be proved by primary evidence.

The case is also a useful counter-weight to the examples that run the other way: entries by a police officer in a site inspection map and site memo have been held to be public documents, and an order sanctioning the prosecution of an officer has been held to be a public document. A post-mortem report, by contrast, is not a public document such as to prove the identity of the deceased without the doctor being called.

It does not decide that a registered deed is inadmissible; it decides only that it is not provable by certified copy as a public document.

The numbering trap. Old s. 74 is now BSA s. 74(1), and old s. 75, private documents, is now BSA s. 74(2) — the two sections have been merged. Certified copies, old s. 76, are BSA s. 75; proof by production of certified copies, old s. 77, is BSA s. 76.