Definition
All documents other than public documents — must be proved by primary evidence or by secondary evidence under specified conditions.
Private documents are all documents not falling within the definition of public documents — they require production of the original (primary evidence) or secondary evidence under the strict conditions of Section 58 BSA.
Statutory Definition
Bharatiya Sakshya Adhiniyam (BSA), 2023, Section 73 (formerly IEA Section 75).
Etymology & Origin
From Latin 'privatus' (personal, not open to public — from 'privare', to deprive of public function) and 'documentum' (proof). A 'private document' is a personal document — not belonging to a public authority. The word 'private' in Latin originally meant 'separated from public life' — a private document is one created by and for private individuals in their personal, commercial, or legal dealings.
Full Legal Analysis
Private documents are all documents other than public documents as defined in Section 72 of the BSA, 2023 (formerly Section 75 IEA). Section 73 BSA provides simply: 'All other documents are private documents.' Examples of private documents include: contracts, agreements, sale deeds between private parties (before registration — though once registered they are in the Sub-Registrar's public records), letters, receipts, private correspondence, commercial invoices, private accounts, and medical records of private hospitals. Private documents are the most common category of documentary evidence in civil litigation.
Proving private documents: to prove the contents of a private document, the party relying on it must produce the original (primary evidence) under the best evidence rule. Secondary evidence of a private document is permitted only in the specific circumstances listed in Section 58 BSA — when the original is lost, destroyed, in the adversary's possession, physically incapable of being produced in court, or of such a nature that a copy is permitted. A party who relies on a private document must first establish the conditions under Section 58 before leading secondary evidence of a private document.
The Supreme Court held that when original private documents are lost or destroyed, the court must be satisfied that all possible and reasonable steps were taken to find the original before secondary evidence is permitted. The party seeking to adduce secondary evidence of a lost private document must first prove: (1) the original document existed; (2) the original has been lost or destroyed; (3) all possible search has been made for the original; and (4) the secondary evidence (certified copy, hand-copy, or oral account) being offered is of a type permitted under the conditions for secondary evidence. The Court emphasised that the door to secondary evidence is not opened merely by a vague claim that the original cannot be found — the search must have been thorough and the loss genuine.
Private documents in commercial disputes: agreements, invoices, purchase orders, and corporate resolutions are all private documents. In commercial arbitration, parties often produce copies rather than originals and the question of secondary evidence admissibility frequently arises. Parties are well-advised to produce originals when available, obtain certified copies when originals are unavailable, or issue a notice to produce (under Section 59 BSA — formerly Section 66 IEA) requiring the opposing party to produce the original document.
For advocates, private document proof issues arise in: (1) contract disputes — the original contract must be produced; (2) landlord-tenant disputes — the original lease deed; (3) loan transactions — the original promissory note; (4) succession and will matters — the original will must be produced in probate proceedings; and (5) property disputes — sale agreements and earlier title documents going back in the chain of title.
This Term in Indian Statutes
Bharatiya Sakshya Adhiniyam, 2023, 2023
"All other documents are private documents."
H. Siddiqui: loss of original private document — all possible search must be proved before secondary evidence; seven conditions Section 58 BSA for secondary evidence; notice to produce (Section 59 BSA); best evidence rule requires primary evidence (original) for private documents
