Report No. 69
In the light of the above discussion, we recommend that in section 90
(i) in sub-section (1), for the word 'thirty' the word 'twenty' should be substituted, and
(ii) a new sub-section (2) should be inserted as follows-
"(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a certified copy1 thereof.-3 is produced, the court may presume that the signatures 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 person by whom it purports to have been executed or attested."
1. The word 'duly' is not necessary before the word 'certified.
2. Cf. section 65(f).
3. See recommendation as to section 74.
Section 90A (Proposed)
41.32. In addition to the amendment made in U.P. regarding certified copies of registered documents where the document is twenty years old,1 another amendment has been made in that State which is not confined to documents purporting to be twenty years old, but applies to documents falling within the specified category, whatever be the age. The principal object of this amendment is to facilitate the proof of the specified category of documents. A brief discussion of certain aspects relevant to an appreciation of its object would be useful.
1. See discussion relating to section 90.
41.33. In the law of procedure, the distinction between documents which may be called basic documents-to use a convenient expression-and other documents which may be conveniently described as evidentiary documents, is well recognised. There are certain special provisions in the Code of Civil Procedure as to the production of these documents at the first hearing. These provisions are not applicable to documents which do not constitute the foundation of the case of the party but are mere evidence. Ordinarily speaking, the basic documents would go to prove or disprove a fact in issue, while the evidentiary documents would be mainly concerned with relevant facts. Of course, this distinction is not to be taken literally, but only as a help to understanding the relative importance of basic documents and evidentiary documents.
41.34. Experience shows that in relation to evidentiary documents, time is sometimes wasted in their proof, and in certain cases where the circumstances supply a reasonable guarantee of genuineness, there should be no objection to the court being given a discretion to presume such genuineness. Acting on the above principles, the U.P. Legislature has inserted a new section-section 90A which applies to-
(a) registered documents,
(b) certified copies of registered documents,
(c) certified copies of documents forming part of the records of courts of Justice.
The rationale is that in the case of such documents, it would be reasonable to presume genuineness having regard to certain special characteristics.
41.35. The section inserted in the State of U.P. is in the following terms:1
"90A. (1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a 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.
(2) This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement.
The Explanation to sub-section (1) of section 90 will also apply to this section."
1. The U.P. Civil Laws (Reforms and Amendment) Act, (34 of 1954).
41.36. As to registered documents, the query may arise why there should be two provisions dealing with the same-one in section 90 as amended in the U.P. and other section 90A, as inserted in the U.P. The answer is that section 90A while it includes registered documents within the specified categories, does not apply to documents which are the basis of the suit or which are relied on by the ,plaintiff or defendant.
41.37. Operation of the section.-
The following further points may be noted with reference to section 90A inserted in U.P.:
(i) The section inserted in U.P. does not require that the document must be thirty years old. But instead, it requires registration or being part of a judicial record.
(ii) The presumption may be made only if the original shows, on the face of it, the name of the person by whom it purports to have been executed. Where the document does not purport to show who prepared and signed it, the section does not make it admissible without proof.
(iii) The presumption under section 90A is with regard to the execution of a document, and in that respect, section 90A is narrower in scope than section 90, Evidence Act, under which a presumption may be made also that a document is in the handwriting of a person by whom it purports to have been written.
(iv) Section 90A is confined to a presumption regarding the execution only as it had, within its purview, not only a registered document, but also a certified copy of a document forming part of the record of a Court of Justice.
(v) Lastly, the Court has a discretion under section 90 and also under section 90A. If, in the exercise of discretion, a Court does not raise a presumption, no interference will be justified in appeal.1
1. A. Devi v. S. Rai, AIR 1962 All 111.
We think that the U.P. amendment is a useful one, and recommend its adoption, but as regards judicial records, it should be confined to documents which are (a) registered or (b) adjudged to be genuine in the earlier case.