Report No. 185
This Section deals with 'production of title deeds of witness not a party'. It reads as follows:
"Section 130.- No witness who is not a party to a suit shall be compelled to produce his title deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims."
This Section should be read with Section 131 and 132. Section 131 prohibits the production of a document in the possession of a person, which any other person would be entitled to require to produce if they were in his possession. Under Section 132 a witness need not answer a question which incriminates him.
In England, this rule is now abolished as far as civil proceedings are concerned and a person can now be compelled to produce such document (Section 16(2) of the Civil Evidence Act, 1968). The Law Reform Committee thought it best to abolish this privilege so far as civil proceedings are concerned (16th Report, 1967, Cmnd. 3472). The 69th Report recommended deletion of reference to title deeds because today almost all title deeds of value above Rs.100, are bound to be registered and there is no secrecy.
Section 130 does not apply to parties to the suit. But in civil and criminal proceedings, if the document does not 'incriminate' him, the privilege of Section 130 is not attracted. Under Order 16 rule 6, CPC, any person may be summoned to produce a document, without being summoned to give evidence. Under Section 162 of the Evidence Act, a witness has to bring the document even if he wants to claim privilege. Under Section 165, a judge is not authorized to compel a witness to produce any document which he would be entitled to refuse to produce under ss. 121-131 (except in relation to Section 123, 124 and 162 as stated earlier).
Application for discovery and inspection of documents in the possession of a witness who is not a party to the suit are regulated by Order 11 CPC.
The Section is based upon the principle that a party should not be allowed to make a fishing and roving inquiry into the title of the property of a witness. Best says (ss. 128, 128A) that the principle is that in a proceeding between two or more parties, the title to some other property of the witness 377 should not become an issue upon which the court would pronounce a verdict.
From what is stated in paras 69.2 and 69.3 of the 69th Report and by Sarkar as to English law (15th Ed., 1999 p. 2053), if all documents of title are subject to compulsory registration, the first part of Section 130 does not serve any purpose. That was why such a principle to a like effect in England was abrogated in 1968 by statute. The 69th Report recommended likewise, saying that 'most' documents concerning immovable property are compulsorily registrable in India.
But, we have considerable doubt, as to how far it will be correct to assume that most documents of title are registrable. Take the case of wills, they are not liable for compulsory registration. Take the case of a mortgage by deposit of title deeds where the language of the memoranda of deposi.- as is usually obtained by Banks in standard format.- does not require registration. There are again cases of family settlements, acquisition of title by adverse possession, possession under an agreement of sale falling within the principle of part performance under Section 53A of the Transfer of Property Act or where property is 'by treatment' included in the 'property of a firm' by a partner when it becomes firm's property.
If a witness whose title is referable to any of these categories, he would be liable to answer questions, if the first part of Section 130 is deleted. These aspects were not taken into account in the 69th Report. We, therefore, disagree with the recommendation in para 69.10 for dropping the words 'his title deeds to the property'. The other suggestion of using the singular for documents (in the second para) is also not necessary if the word 'documents' in the first para is retained.
We, therefore, recommend, only a limited change, as stated above, and as revised, the Section should be amended as follows:
For the words, "unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims" the following shall be substituted, namely:-
"unless such witness has agreed in writing with the party so requiring him or with a person claiming through such party."