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Published : February 07, 2011 | Author : himanikishorkini
Category : Criminal law | Total Views : 16598 | Rating :

  
himanikishorkini
himani.kini.
 

Presumption as to documents thirty years old

The Indian Evidence Act does not make an attempt to define what a presumption is. Stephen defines it as a rule of law that courts and Judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth of such interference is disproved. This definition speaks about mandatory presumption but not of permissive presumption. In rising a presumption an inference is drawn by the court from certain facts is supersession of any mode of proof. When a document is produced in evidence, certain presumptions may arise in regard to them. These presumptions are discussed in section 79 to 90. Some of the presumption as can be seen inn Section 79 to 85 and section 89 are obligatory in the sense that the court is bound to draw them, and other presumption in Section 86 to 88 and Section 90, are merely permissive, in the sense that the court may or may not draw them.

Legislative provisions
Presumption as to documents thirty years old:-
Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person’s handwriting, and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation:-
Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable

Illustration:-
(A) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his title to it. The custody is proper.

(B)A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(C) A, connection of B, produces deed relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper
Scope

Section 90 provides that when any document:-
(1) Purporting and proved to be thirty years old,

(2) Is produced in the court,

(3) From custody which is the opinion of the court is proper.

Then the court may presume:
(i) that the signature and every other part of the document which purports to be in the hand writing of any particular person is in that person’s hand writing ;

(ii) that it was dually executed and attested by the person by whom it purports to be executed and attested.

As a general rule if a document is produced before a court, it execution must be proved by a witness and if the document is required by law to be attested, its attested must also be proved by some witness. Circumstances may arise when the document are produced in the court long after they have executed and the time elapsed between the execution and the production of the document in the court may be so long that all the person in whose presence the document was executed night have died. If the method of proof according to the above general rule is strictly followed documents will remain unproved, section 90 of the Evidence Act is a provision for the kind of emergency.

The power under section 90 is only discretionary and not compulsory. It depends upon the court. In Ali Hasan v. Matiulla it has been held that the court may presume the execution of a document under section or may demand the proof of the document filed.

Section 90 lays down that when a document purporting or proved to be 30 years old is produced in a Court from a custody which the court other part of such document is of that very person whose signature or it shall be presumed that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Principle
Under this section a presumption may be drawn in favour of document of thirty years old or what is known as Ancient Documents. Ordinarily whenever the execution of a documents is required to be proved, rules relating to the proof of the execution of a document is required to proved, rules relating to the proof of the execution of documents laid down in the forgoing section of this Chapter have to be compiled with. For Example, A executes a mortgage deed for sum of Rs.1000/- in favour of B. The deed is signed by A, in the presence of the witness C and D who affix their signature on the deed as attesting witnesses in the presence of A. After wards in a dispute before the court A denies to have executed the mortgage deed. B seeking to prove the execution of mortgage deed is required by section 68 to call at least one attesting witness for the purpose of proving the execution of the mortgage deed. But where the document is proved to be thirty years old, compliance with the rules meant for the purpose of proving the execution of documents may be dispensed with and the present section. Section 90 embodies a rule of necessity.The rule established for sake of general convenience, founded on the great difficulty and often impossibility of proving handwriting after a long lapse of time and on the presumption that the attesting witnesses, if any, are deed, a presumption which is not allowed to be, rebutted by proof that such witnesses are alive and actually in court.

When a presumption may be raised:-
The following conditions have to be satisfied so as to enable the court to raise a presumption in favour of the documents under this section:

(1) Ancient Documents :
This section applies only to the documents purporting or proved to be thirty years old. The period of thirty years must be reckoned from the date, the document purports to bear. By the word ‘purport’ is meant “stating itself to be”. Therefore by the term “a document purporting to be thirty years old” means a document stating itself to be thirty years old. No presumption of genuineness can be raised under this section, if the document is undated. The court may, but is not bound to presume that a thirty-year old document is genuine. For example, A executes a will in favour of B in the year 1949. The will is written by A’s lawyer C, and signed by A in the presences of A as attesting witness. Later, in the year 1975, disputes having arisen between B and F over the ownership of the property. B produces the will executed by A. B is exempted of proving the execution of the will as the document is 30 years old when it is tendered in evidence and the court may presume that the will in question was duly executed and attested by A, D and E respectively by whom it purports to have been executed and attested. It is not necessary in every case to prove that the document is 30 years old if intrinsically it purports to be that old.

The period of 30 years must be reckoned from the date, the document purports to bear. If no date is given in a document it can be proved by extraneous evidence that it was executed thirty years ago. Thus, if a document is bearing the date by which it is 30 years old, or a document bearing no date but proved to be thirty years old, is produced from a proper custody its execution may be presumed by the court. The court should be cautious about the age of a document. A document may be written yesterday and a date of 30 years ago may be given.

The period of 30 years is to be reckoned not form the date upon which the document is filed in court, but from the date on which, it having been tendered in evidence, its genuineness or otherwise become the subject of proof. The period of 30 years is to be commuted from the date of its exaction to the date on which it was sought to be put into evidence.

The Privy Council in Surender Krishna Roy v. Mirza Mohammad Syed Ali, held that the presumption under Section 90 is applicable if the document is not 30 years old, at the date it is filed in court, but becomes, 30 years old at the date when its genuineness becomes the subject of proof.

(2) Produced from proper custody:-
“The proper custody of a document” means its deposit with a person and in a place, where, if authentic, it might naturally and reasonably be expected to be found. “Proper custody” means the custody of any person so connected with the deed that his possession of it does not excite any suspicion or fraud.

Proper Custody is custody proved to have had a legitimate origin or an origin the legitimately of which the circumstances of the case render probable.

Section 90 insists only on a satisfactory account of the origin of the custody and not on the history of the continuance.

The mere production of an ancient document by a party to a proceeding affords no ground for its presumption of its genuineness. The party producing it must prove that it was in the proper custody. The term ‘proper custody does not necessary imply that in sufficient if it, is proved to have had legitimate origin or if the circumstances of the particular case are such as to render such an origin probable. Illustrations (a) to (c) to Section 90 are example of proper custody.

The origin of custody has to be explained by the person producing the document if he happened to be a person who is not normally supposed to have custody of the document. It is enough if the person is so connected with it that he may reasonably be supposed to be in possession of it.

In Poonamchand v. Motilal, when a person stated on oath that the document had been entrusted to him by the vendee of the property for the purpose of certain case in court, it was held that the custody of such document cannot be said to be improper, and the court can raise a presumption as to its genuineness under Section 90.

In Darshan Singh v. Prabhu Singh, a deed relating to the affairs of a family of there a brother was produced from the custody of their mother. It was held that the custody is proper, as there could be no better custodian than the mother to whom all the three sons are alike.

(3) Document must be free suspicion :

For the purpose of raising a presumption under this section the document must be free from suspicion. When ever the court entertains any doubt, the court may refuse to draw the presumption and directs the party seeking to offer the document in evidence to prove it complying with the normal rules of proof.
(4) Document must not have been anonymous:-

No presumption can be raised where the document is an anonymous oneSection 90 therefore does not apply to unsigned documents even though they are proved to be 30 years old and produced from proper custody.

Extent of presumption:-
When a document purporting or proved to be 30 years old and produced frim proper custody, the following presumption may be raised:-

(i) That the signature and every other part of the document which purports to be in the hand writing of any particular person is in that person’s hand writing.

(ii) That the document was attested by the person by whom it purports to have been executed.

(iii) That the document was attested by the person by whom it purports to have been attested.

Nature of Presumption:-
The expression ‘may presume’ used in this section clearly suggests that the court has discretionary power either to presume or not to presume. The judicial discretion should not be exercised arbitrarily and not being informed by reason. The court while raising a presumption under this section must exercise considerable care and caution and take into consideration all surrounding circumstances. If the document produced is found to contain any erasures, over writing or there defects, the court must refuse to draw the presumption of genuineness.

No Presumption to the truth of the contents of the document:-
Although a presumption may be raised as to the genuineness of the execution of documents in view of their age and custody, there cannot be a presumption of document in view of there age and custody, there cannot be a presumption as to the truth of the contents of the documents. The presumption is confined to the execution and attestation.

U.P State Amendment:-
Section 90 has been amended by the U.P. Civil Laws (Reform and Amendment) Act. No. XXIV of 1954. Under the amended law in the State of Uttar Pradesh, a presumption of genuineness may be raised in favour of a document if it is of 20 years old and produced from proper custody. Further the amended law also provides that if a document proved to be 20 years old, was registered, in accordance with the law, relating to registration of documents and a duly certified copy, is produced, the court may presume that the signature and every other part of such document which purports to be in the hand writing of any particular person, is in that person’s hand writing in case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested.

“Where any registered document or a duty certificated copy of a document which is part of the record of court of Justice, is produced from any custody which the court in the particular case considers proper, the court may presume that the original was executed by the person by whom it purports to have been executed. This presumption shall not be made in respect of any document which is the basis of a defence or is relied upon in the plaint or written statement.”

Section-90A (of UP) lays down that where any registered document or duly certified copy of a document which a part of a record is produced its genuineness may be presumed, but if such deed or document is a basis of a suit or defence etc. It genuineness shall not be presumed. If a deed or document is covered by Section 90(2) its genuineness may be presumed even if it is the basis of suit.
Presumption as to the Certified copies

There has been divergent opinion as to the application of Section 90 to the certificated, prior to the decision of the Privy Council in the case Basant Sing v. Brij Raj Singh. It was held by the Privy Council in this case that where a certified copy is admitted as secondary evidence under Section 65, which is of 30 years old and produced from proper custody, the court may presume the signatures, authenticating the copy to the genuine, but will not presume the genuineness of the original.

The Supreme Court of Indian upholding this view in Sitaldas v. Sant Ram, the Supreme Court has held that the production of a copy is not sufficient to raise the statutory presumption under section 90 of the due execution of the original for that the party must produce the original.

In Harihar Prasad v. Deonarain the Supreme Court observed that the presumption enacted in Section 90 can be raised with reference to original document and not to copies thereof.

In Mahont Sit Das v. Sant Ram, the Supreme Court has held that if the document purports to be raised and the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, Section 90 does not authorise the raising of a presumption as to the existence of authority on the part of the agent to represent that person

Conclusion
According to Stephen presumption is mandatory not permissive presumption and especially permissive is dealt in section 90 of the evidence act. Permissive presumption means it is on the court discretion whether to believe or not to believe.

Thus Section 90 deals with the presumption which may be drawn in favour of document of thirty years old. The period of thirty years must be reckoned from the date, the document purports to bear and if the document is undated then no such genuineness can be raised under this section.

Further the other necessity which needs to fulfil is that the production of 30 years old must have been produced from the custody, which in the opinion of the court is proper. The document should also be free from suspicion and anonymous.

According to the present research the hypothesis which was conducted by the researcher seems to be true in a way round because the genuineness depends upon the date of execution of the document if the date is not mentioned then the document doesn’t hold any importance in the eyes of the court. And the court has the wide discretion on the admissibility of the document.

Bibliography
Books Referred:-
· Singh Avtar, Principle of the Law of Evidence,(Allahabad: Central Law Publication)2008.
· Myneni ,S.R. Law of Evidence,(Hyderabad: Asia Law House) Ed 1st
· Krishnamachari .V. Law of Evidence,(Hyderabad: S.Gogia and Company) 2010

Cites Referred.
· Available at http://www.lawyersclubindia.com/articles/a-study-on-compulsory-attestation-of-documents-502.asp. visited on 7th September.
· Avai;able at http://indiankanoon.org/doc/376986/ visited on 8th September.
---------------------------------------------------------
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 429
# Ibid.
# S.R. Myneni, Law of Evidence,(Hyderabad: Asia Law House) Ed 1st P 455
# AIR 1988 ALL 57
# S.R. Myneni, Law of Evidence,(Hyderabad: Asia Law House) Ed 1st P 455.
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 429
# Ladha Ram v. Harichand, AIR 1938 Lah. 90
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 429
# S.R. Myneni, Law of Evidence,(Hyderabad: Asia Law House) Ed 1st P 455
# Hota Veerabhadryya v. kocharla Venkat Krishna Rao, 1929 Mad. 674.
# Avtar singh, Principle of the Law of Evidence(Allahabad : Central law Publication)P.351.
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 429
# S.R. Myneni, Law of Evidence,(Hyderabad: Asia Law House) Ed 1st P 456.
# 63IA 85.
# AIR 1955 Raj 179
# AIR 1946 All. 67
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 429
# Chandukutty Nambiar v. Rama Varma, AIR 1939 Mad. 926.
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 432.
# Lathe Baruah v. Padmakanta Kalita, AIR 1996 SC 1253
# Shaok Hussain v. Goverdhan Das, ILR (1896) 20 Bom. 1, 5.
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 431
# Khetra Mohan v. Brairab Chanra, AIR 1927 Cal 229.
# V. Krishnamachari, Law of Evidence,(Hyderabad: S.Gogia and Company) 2010 P 431
# S.R. Myneni, Law of Evidence,(Hyderabad: Asia Law House) Ed 1st P 459
# AIR 1935(PC) 132.
# AIR 1954 SC 606.
# AIR 1956 SC 305.
# AIR 1954 SC 606.

Authors contact info - articles The  author can be reached at: himanikini@legalserviceindia.com




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Article Comments

Posted by Anusha on July 18, 2014
My Grandfather made a will 30 years back and the will is registered also, but now our lawyer says we require witness to prove the will as genuine. Can somebody please suggest that is it necessary to prove the will, because as I mentioned earlier it was made 30yrs before and now the people who were as witness are passed away. I had read somewhere that if the will was made 30years back then there is no need to prove by the witness, is this true? is it necessary to prove a registered will? we are ready to prove the signature in the will but cannot find the witness as nobody is alive. please reply


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