Report No. 69
An important presumption concerning what are known as 'ancient documents' forms the subject-matter of section 90, which we shall now proceed to consider.
After the lapse of time, it is difficult if not impossible, to prove the handwriting, execution and attestation of documents in the ordinary way, and the law, out of sheer necessity, provides for certain presumptions as to the genuineness of such documents. Besides necessity, there is another aspect justifying such a presumption. A fabricated document will, generally, by reason of some intrinsic or other inconsistency, afford internal; evidence of its real character, because forgery of a document-if there has been a forgery-would normally have been detected in the meantime.
41.3. Initially after the passing of the Evidence Act, there seems to have been some reluctance on the part of some courts in India to draw the presumption which is drawn in England in respect of such documents. This reluctance is illustrated by a few Calcutta cases. In one case1, the court stated that the rule of English law had been adopted in the country, but the courts had to be extremely careful in the application of it to this country2.
1. Gooru v. Bykunto, (1886) 6 WR 82 (Cal).
2. Jasa v. Ganga, (1915) 48 Punjab Record Civil Judgment No. 81, p. 281.
41.4. Care to be exercised.-
These remarks may now appear to be only of historical importance. But it is better to bear them in mind, since the drawing of a presumption under section 90 is not a mere mechanical act, but requires the exercise of careful discretion, and courts-even in cases after the passing of the Act-again and again, stress the danger of treating old documents as established merely because the conditions of the section are fulfilled. For example, in a Punjab case1, Farran, C.J. observed:
"We are fully aware of the danger of treating old documents as established merely because they are 30 years old and come from the proper custody."
Section 90 may now be quoted:
"90. 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 handwriting of any particular person, is in that person's handwriting and, in the case of a 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 a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
This Explanation applies also to section 81".
1. Jasa v. Ganga, (1915) 48 Punjab Record Civil Judgment No. 81, p. 281.
41.5. Foundation of the rule.-
The principal foundation for the rule enacted in section 90 is that of necessity as already stated. The rule is founded on the great difficulty-and often the impossibility-of proving handwriting after a long lapse of time1. It is also based on the rationale that the attesting witnesses, if any, would now be non-available2. Conditions as to the age of the document and production from proper custody are prerequisites. But other circumstances also weigh with the court in the exercise of its discretion. The presumption relates to the execution of the document i.e., signature, attestation etc. In other words, its genuineness, but not the truth of its contents, forms the subject-matter of the presumption.
1. Wymmy v. Tirwhitt, 4 B&AD 376, cited in Phipson, (1963), para. 1649.
2. Deo v. Woolley, (1928) 8 B&C, cited in Phipson, (1963) para. 1649.
41.6. Presumption discretionary.-
The presumption is discretionary. Regarding the care to be exercised in making the presumption under the section, the law is laid down in cases such as Uggrakant Chowdhury v. Hurro Chunder Shickdar, 1880 ILR 6 Cal 209. The court may, but is not bound to, make the presumption, merely because of the apparent age of the document. The difficulty, on the other hand, of proving the execution of ancient documents and the reasons in favour of such presumptions where small doubt exists as to their genuineness, are set forth in Govinda Hazar v. Pratap Narain Mukhopadhyaya, 1902 ILR 29 Cal 740.
41.7. In one case1 the privy Council held that notwithstanding that a document was more than 30 years old and had been produced from proper custody, the courts below exercised their discretion under section 90, by not admitting the document in evidence without formal proof and by rejecting it when no such proof was given, on the grounds that there were circumstances in the case as the document itself threw great doubt for its genuineness. The Privy Council upheld the exercise of the discretion by the court, and declined to interfere with it.
1. Shafiqunnissa v. Shabon Ali Khan, 1904 ILR 26 All 581 (587) (PC) (J).
41.8. In the case of documents 30 years old, the genuineness of which is disputed, it is necessary, therefore, for the Courts to consider the evidence external and internal-of the document, in order to enable them to decide whether, in any particular case, they should or should not presume proper signature and execution.
41.9. Important conditions and limitations.-
So much as regards the principle of the section. It may be useful now to draw attention to a few important conditions for the applicability of the section and other limitations as to its scope. In the first place, the section does not create any presumption of accuracy1 of the contents of the document. The truth of its contents must be proved by other means. In the second place, the section cannot be applied unless the signature of a particular person or handwriting of any part of the document, is in issue.2 Where the document does not purport to be signed by or written in the hand of a person the section has no application.3
It the third place, the presumption is discretionary and rebuttable.
In the fourth place, the document must purport or be proved to be thirty years old.
Finally, the document must be produced from proper custody.
1. Khatra Mohan v. Bhairat Chand, AIR 1927 Cal 229.
2. Ganesh Prasad v. Narendra Nath, AIR 1953 SC 431 (432).
3. Trimbakdas v. Mathabai (Mst.), AIR 1930 Nag 225 (229).
41.10. Illustration cases.-
A Calcutta case1 illustrates the first limitation. The appellants sued for declaration of their title and correction of settlement records of 1917, where the names of some others found place. The first court decreed the suit, on appeal to the District Court, the decision of the lower court was reversed. Hence the appeal to the High Court.
1. Khetra Mohan v. Bhairab Chandre, AIR 1927 Cal 229.
The contention of the appellant was that the "Jamabandi furd" was an ancient document, which must be presumed to have been proved under section 90. If the document was not genuine, the appellant should be given an opportunity to prove the genuineness of it. In fact, the lower court admitted the document without proof, and thus deprived the party of the chance to adduce evidence to prove that one Darpa Narayan was the ijardar of the Zamindar from whom the mother of the appellant got the Settlement Deed.
41.12. It was held that a person producing such a document was relieved of the necessity of proving that it was executed by the person who purported to be the executant, provided that the document was 30 years old and was produced from proper custody. But it was not the same thing as saying that the court should presume the correctness or genuineness of every statement appearing in the document.
The appeal was dismissed.
The other conditions need no comments.
41.13. Presumption when to be drawn.-
If the conditions analysed above are satisfied, the presumption specified in the section may be drawn-the section does not provide that it must be drawn in every case. But once the circumstances are such that the presumption can be justly drawn, then, there are no further limitations in law, and it may be useful to amplify this proposition by drawing attention to the width of the section.
41.14. Application to any 'document'.-
Thus, for example, the section applies to any 'document'. The documents are not confined to transfers in the restricted sense, but would include books of account1, letters2 and registers3. If the document purports to be written by a particular person, then it does not matter that the document was in the form of entries in the 'bahis' of parties.1
1. Durga Shankar v. Ganga Sahai, AIR 1932 All 500.
2. shafiq-un-Nissa v. Shaban Ali, 1904 ILR 26 All 586 (PC).
3. Parmodh Chand v. Narain Singh, AIR 1936 Lah 104 (107) (Municipal Board School Register).
4. See discussion in Huzare Singh, AIR 1937 Lah 599.
41.15. Other provisions as to account-books.-
In the case of account-books over 30 years old, there can be a presumption that they are written by persons by whom they purport to have been written. Section 32(2) can be applied also in case it is proved that the person who wrote the document in question is dead or otherwise not available as a witness. Under section 34, entries in old account books by themselves are not sufficient to charge a person with liability.