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STUDY ON PRESUMPTION AS TO THE DOCUMENTS OF 30 YEAR OLD DOCUMENTSce
STUDY ON PRESUMPTION AS TO THE DOCUMENTS OF 30 YEAR OLD DOCUMENTSce
MATS University
MATS Law School
ACKNOWLEDGEMENT
I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.
I am highly indebted to my subject lecturer Asst Prof. Pankaj Umbarkar for his guidance and
constant supervision as well as for providing necessary information regarding the project & also
for their support in completing the project.
I would like to express my gratitude towards my parents for their kind co-operation and
encouragement which help me in completion of this project.
I would like to express my special gratitude and thanks to my subject lecturer for giving me such
attention and time.
My thanks and appreciations also go to my friends and sister in developing the project and
people who have willingly helped me out with their abilities.
Thank You
Shruti Kamble
Table of Contents
Introduction......................................................................................................................................3
PRESUMPTION OF 30 YEAR OLD DOCCUMENT...................................................................3
Document.....................................................................................................................................3
Presumption.................................................................................................................................4
Presumption of Thirty Year Old Documents................................................................................4
May presume................................................................................................................................6
When a presumption may be raised.................................................................................................8
Ancient Documents......................................................................................................................8
Produced from proper custody:....................................................................................................9
EXTENT OF PRESUMPTION.....................................................................................................10
Evidentiary value need of corroboration........................................................................................11
CERTIFIED COPIES....................................................................................................................12
CONCLUSION..............................................................................................................................13
BIBLIOGRAPHY..........................................................................................................................14
compromise were recorded by a court and duly signed, it was to be held to be a document. 2With
regard to recorded tape, it was said that there is no reason in principle why the recording in
recording in some permanent or semi-permanent manner of human voice (or other sounds) which
are relevant to the issue to the determined, provided that it furnishes information, cannot be a
document.3
Presumption
Presumptions are inferences which are drawn by the court with respect to the existence of certain
facts. When certain facts are presumed to be in existence the party in whose favor they are
presumed to exist need not discharge the burden of proof with respect to it. This is an exception
to the general rule that the party which alleges the existence of certain facts has the initial burden
of proof but presumptions do away with this requirement.
Presumptions can be defined as an affirmative or negative inference drawn about the truth or
falsehood of a fact by using a process of probable reasoning from what is taken to be granted. A
presumption is said to operate where certain fact are taken to be in existence even there is no
complete proof. A presumption is a rule where if one fact which is known as the primary fact is
proved by a party then another fact which is known as the presumed fact is taken as proved if
there is no contrary evidence of the same. It is a standard practice where certain facts are treated
in a uniform manner with regard to their effect as proof of certain other facts. It is an inference
drawn from facts which are known and proved. Presumption is a rule which is used by judges
and courts to draw inference from a particular fact or evidence unless such an inference is said to
be disproved.
Presumption of Thirty Year Old Documents
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
2 Raksha Rai v. Ram Lal A.I.R 1987 P.& H. 60
3 R v. Daye, 1908 (K.B)333
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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.
May presume
It is not compulsory with the court to presume the genuineness of a document 30 years old.
When the document purporting to be executed before 30 years or more, is produced before the
court, it may presume that the document has been written and signed by the person by whom it
purports to have been written or signed, or it may require the party producing the deed to prove
its execution by producing some witnesses. 4 Discretionary power vests with the court to raise or
to refuse to raise the presumption.5It is in the discretion of the court to presume in favor of a
document for which Section 90 applies. The discretion is not to be applied arbitrarily but must be
governed by the principles which are conjoint by law and justice. And while on one hand great
care is required in applying the presumptions, if a court is a bit careless in presuming the
genuineness of a document, forged document recently prepared and antedated may be taken to be
genuine without proof. On the other hand it is clear that very grave injustice may be perpetrated
if an ancient document coming from proper custody is rejected by court because the party
producing it cannot prove it all the persons who could have proved it are dead. The discretion
however must be judicially exercised. The discretion is not to be exercised arbitrarily or
capriciously but must be given by principles which are consonant with law and justice. The
presumption is rebuttable.
4 Ram Milen v Sher Bahadur, AIR 1976 All
5 Shafiqunissa v Shaban Ali Khan, 30 IA 217 PC
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The power under Section 90 is only discretionary and not compulsory, the court may presume the
execution of a document under Section 90 or may demand the proof of the documents filed 6.
Where the document was gift cum will and was 30 years old coming from custody of proper
person and was registered, the court presumed its proper execution.7
The Privy Council in Surender Krishna Roy v. Mirza Mohammad Syed Ali 8, 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.
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. Motilal9, 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.
8 AIR 1936 PC 15
9 AIR 1955 Raj 179
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In Darshan Singh v. Prabhu Singh10, 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. Whenever 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 one Section 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 thirty years old is produced form custody, three
presumptions arise in respect of it
a. That the signature and every other part of the document which purports to be in
handwriting of any particular person is in that persons handwriting
b. That the document was executed by the person by whom it purports to have been
executed.
c. That the document was attested by the person by whom it purports to have been attested.
In the case of an ancient will, there is a presumption under section 90 that the testator was in a
sound deposing state of mind at the time of its execution. There is no presumption about the
correctness of the contents.11 The Supreme court of India in Harihar Prasad sing v Deo Narayan
Prasad12, held that section 90 does not authorize the raising of presumption as to the existence of
10 AIR 1954 SC 606
11 Chandulal Ashram v Bal Kashi 40 Bom LR 1262
12 1956 SCJ 279
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the authority of an agent to act for another in case the document in question is purported to be
signed by B as the Agent of A acting under his authority, and where the adverse party denies the
existence of such agency and authority, in such a case the existence of that authority has to be
proved by positive evidence. The Court held that the presumption under section 90 can be raised
with reference to original documents and not to copies thereof, even though they may be certified
copies. If a document produced in court is only a certified copy the signature has to be proved
under section 67 even though the document may be 30 years old. In Sital Das v Sant ram 13 the
Supreme court of India 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. The only presumption if the court may legitimately draw is that the
signature authenticating the copy was genuine. The presumption available under this section
cannot be extended to a will even if it is registered will. 14 A final report of the settlement
operation based on specific data on which the entries are made in the record of rights should be
taken has no reliable and authentic then the statement in that regard made in the district
Gazzaets.15 Similarly no presumptions can be raised in respect of a document which is neither
signed nor attested and which does not give the name of the scribe either.16
presumption of due execution there is no presumption that the document has a legal effect that it
purports to have.
In the case of an alienation by a Hindu widow woman if the execution of document by her is
admitted or proved, on the question whether she made an absolute alienation, no assistance can
be derived from Section 90. The question as to the effect of the document after its execution is
admitted proved is outside the scope of Section 90. The question as to effect of the document
after its execution is admitted or proved is outside the scope of section 90. When a Hindu widow
makes alienation the circumstance justifying the alienation the circumstances justifying the
alienation such as legal necessity are matters extraneous to the execution of document and
section 90 cannot be called as aid to presume matters extraneous to the actual execution.18
CERTIFIED COPIES
In the earliest case of Khettar Ch v Khettar Paul 1880, a will more than 30 years being lost was
admitted without proof of execution of the original views. But later on after the contradiction of
views of various courts in the matter the view regarded in the former case was completely
changed. In Nathuram v Jagatnath , it was held that in the view of clear language of S.90, it
requires the production of particular document to which the court may make statutory
presumption. If the document produced is a copy, admitted under S 65 as secondary evidence,
and it is produced from proper custody and is over 30 years old, then the signature authenticating
the copy may be presumed to be genuine. But production of copy is not sufficient to justify the
presumption of the due execution of the original under section 90. The presumption regarding
old document is not available where the certified copy of an old document is produced . It is not
possible to bring necessary evidence in respect of a document which is 80 years or 73 years old.
The raising presumption regarding to the execution and proof of document is discretionary as
held in Ali Hasan v Matin Illah.
The position since the privy council decision is that the presumption under Section 90 dose not
apply to a copy whether personal or private though 30 years old, but if a foundation is laid for the
17 Swarnamoti v Sourindranath Mitra 1925 Cal 1189
18 Ramji Ratanji v Manohar 62 Bom LR 322
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admission of secondary evidence under S 65 by proof of loss or destruction of the original copy
and a copy which is 30year old is produced from proper custody, then only the signatures
authenticating the copy may under section 90 be presumed to be genuine. But the production of
ancient copy does not raise the presumption of due execution of the original document under S
90. The execution of original has still to be proved by circumstances.
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CONCLUSION
In the process of delivering justice, the courts have not only to go into the facts of the case but
also to ascertain the truthfulness of assertions made by the parties. The areas of assertions and
ascertainment of its truthfulness is governed by the law of Evidence. Documents are the
important areas of evidence hence also the question of their determination of relevancy. The
statue in order to simplify the courts doubt as to where and how and which document has to be
accepted as relevant and admitted provided certain presumptions in the area of documentary
evidence. It is not compulsory with the court to presume the genuineness of a document 30 years
old. When the document purporting to be executed before 30 years or more, is produced before
the court, it may presume that the document has been written and signed by the person by whom
it purports to have been written or signed, or it may require the party producing the deed to prove
its execution by producing some witnesses. 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 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.
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BIBLIOGRAPHY
1. JUSTICE M MONIR, THE LAW OF EVIDENCE, 9th Ed., 2014, Universal publication
2. BATUKNATH, LAW OF EVIDENCE, 13th Ed.,2012, Asia Law Book House
3. Dr ARIJIT PRASAD, THE INDIAN EVIDENCE ACT(A Concise Commentary), Asia
Law Book House
4. RATAN LAL DHEERAJ LAL, THE LAW OF EVIDENCE, Lexis Nexis Butterworths
Wadhwa Nagpur
5. www.ssrn.com
6. www.ebc-india.com
7. www.legalpoint.in
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