Report No. 185

Section 90

Section 90 refers to 'presumption as to documents thirty years old'. The Court 'may presume'. It reads as follows:

"90: 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."

There are three illustrations under Section 90.

In UP there were two amendments. One in Section 90 where, after renumbering the existing section as clause (1), reducing 30 years to 20 years and clause (2) was added to Section 90 and it referred to a certified copy of the original which was produced, the original having been registered, and the same presumption as to handwriting of the person, execution, attestation as applicable to the original under sub-section (1) was applicable to the original of the certified copy of the registered document.

In addition, Section 90A was added and clause (1) thereof refers to a 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. Here, there is no need that the original is to be 20 years old. Here when such copies are produced, the court may presume that the original was executed by the person by whom it purports to have been executed. There is no presumption as to handwriting or as to attestation. Clause (2) of Section 90A says that the presumption under Section 90A(1) shall not apply 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.

(a) In the 69th Report, the reduction of the period from 30 years in Section 90 to 20 years and the presumption introduced by adding clause (2) to Section 90 in respect of certified copies of registered documents 20 years old, was recommended if the registration of the original was 20 years or more than 20 years by the date of production of the copy in the Court.

We agree that an amendment in Section 90 as done in UP should be introduced.

In England by Section 4 of the Evidence Act, 1938, the period for presumption of 'ancient documents' was reduced to 20 years. Initially, the period was 40 years (see Gilbert, Evidence 1st Ed. p. 102). In R v. Farrington (1788) 2 T.R.466, it was reduced to 30 years and in 1938 to 20 years. The rule is based on difficulty of producing witnesses connected with ancient documents.

According to Halsbury's Laws of England, 4th Ed., (Vol.17, para 129) such ancient documents prove themselves notwithstanding the fact that one of the subscribing witnesses is alive.

In as much section 90 uses the words 'may presume', it has been held that in case the executant or attesting witnesses are alive and available, the Court can insist on proof by witnesses rather than draw the presumption under Section 90. Similarly, if the executant or attesting witness are dead, the Court can consider whether the document can be proved by the procedure in Section 69 before raising a presumption under Section 90 (Haradhan Mahatha v. Dukhu Mahatha: AIR 1993 Pat. 129). See also D. Ramanatha Gupta v. S. Razack AIR 1982 Karn. 314. If the document is not proved to be 30 years old, the presumption cannot be drawn (State of Karnataka v. Veeranagouda: AIR 1995 Karn. 361). Entries in revenue records more than 30 years old can be presumed to be authentic (Kartar Singh v. Collector, Patiala : 1996 AIHC 1538 (P&H).

The presumption has been applied to wills by the Privy Council in Basant v. Brijraj : AIR 1935 P.C. 132.

(b) But the presumption under Section 90 has to be applied, as the law now stands, only to originals and not to copies Kalidindi v. Chintalapati : AIR 1968 SC 947; Munna Lal v. Kashibai AIR 1947 P.C. 15. But in Satyapramoda v. Mull Gunnayya AIR 1982 A.P. 24, the admissibility of a certified copy of a special vakalat (for accepting a compromise signed by a lawyer under that Vakalat) filed in a proceeding 30 years old was accepted after it was found that the original which was in the District Court was destroyed as per rules. A presumption was drawn in respect of the existence of the original vakalat. See also Sital Das v. Sant Ram : AIR 1954 S.C. 606; Harihar v. Deo Narain AIR 1956 SC 305; Tilak v. Bhim 1969 (3) SCC 307; Shivlal v. Chetram AIR 1971 SC 2342.

In the case of certified copies, it has been held that resort can be had to Section 57(5) of the Registration Act (Karupanna v. Kolandaswami : AIR 1954 Mad 495 or Section 60(2) as to admission of execution before the Registrar (Kashibhai v. Vinayak AIR 1956 Bom 65). Of course, if the original is lost, certified copies may be admissible as secondary evidence, Wigmore, (Ev. section 2143) says "Where the alleged ancient original is lost, and an ancient purporting copy is offered, made by a private hand, and the purporting maker being unknown or deceased, it seems to have been long accepted that this suffices, and that the copy may be received under the ancient document rule.

"Wigmore also says (Ev. section 2143) "that when the alleged ancient original is lost (or otherwise unavailable) and a purporting official record is offered, made more than thirty years before, and certifying the deed's contents and the execution, the case is stronger than the preceding one."

The UP amendment, 1954 to Section 90 has the effect of reducing the period to 20 years and extends Section 90 to certified copies (Sardaran v. Sunderlal: AIR 1968 All 363); Babu Nandan v. Board of Revenue: AIR 1972 All 406. These amendments we are proposing in sub sec.(1) & (2) of section 90.

II. So far as Section 90A of the UP Amendment is concerned, it deals with the original registered document or duly certified copy thereof or one certified from court record and the presumption applies only if the original shows on its face the name of the person by whom is purports to have been executed. Under Section 90A, the presumption is with regard to execution only, as stated earlier, and is narrower than Section 90 which raises a presumption as to the handwriting and attestation also. Further, under clause (2) of Section 90A, presumption as to genuineness of execution of the registered document cannot arise by production of a certified copy when it forms the basis of a suit or defence.

In Ram Jos v. Surendra: AIR 1980 All 385 (FB), Omprakas Bhagwan: AIR 1974 All 389 was overruled; and Smt. Vidya Devi v. Nandkumar: AIR 1981 All 274; Bhaggal v. Ranji Lal AIR 1986 All 163 were approved. These cases related to a plea based on Section 90A(2) when the copy related to an original document more than 20 years old. Question was whether even though the registered copy fell within Section 90(2), as in force in UP, whether Section 90A(2) too applied, because the original was registered and whether, if the document was the basis of the suit, it was excluded by Section 90A(2) as in force in UP. The Full Bench held that if the certified copy fell under Section 90(2.- being a copy of an original more than 20 years old, Section 90A(2) did not apply but Section 90(2) alone applied.

We shall briefly refer to the facts in Ram Jos' case (1980) decided by the Full Bench of the Allahabad High Court. In that case, a certified copy of a registered will was pressed in evidence and it was the basis of the suit. The original document which was registered was more than 20 years old. The document being a certified copy did not fall under Section 90(1) but fell under Section 90(2) as amended in UP and was admissible for the purpose of raising a presumption under that sub-section.

But then it was argued that Section 90A was also applicable because Section 90A was applicable to certified copies whether they were copies of originals registered more than 20 years old or not. If it could also fall under Section 90A, then under Section 90A(2) it would not be admissible if the document was the basis of the suit or defence.

The Full Bench held that Section 90 and Section 90A, both as amended in UP were independent of each other and if a certified copy of a registered document (the original being 20 years old or more than 20 years old) was admissible under Section 90(2) and a Court could raise a presumption, the fact that it was the basis of the suit or defence was immaterial. In other words, Section 90A(2) would be applicable only if the document was less than 20 years old or rather Section 90A(2) would not have any impact on Section 90(2).

In para 41.28 of the 69th Report, reference was made to the observations of the Commission in the 14th Report Vol.1, page 518 (para 9), and first sub paragraph, and page 519, para 10.

The 69th Report, as already stated, finally recommended (para 41.31) that the existing provision of Section 90 should be sub section (1) of Section 90 and that subsection (2) be added to Section 90 as in UP so as to allow a presumption to be raised in respect of certified copies of such documents.

Now, if a document which in UP is more than 20 years old was registered in accordance with the law relating to registration, the Registrar would have made an endorsement on the document regarding the due execution of the document by the executant at the time the document purports to have been executed.

If years later, before a suit or written statement is filed, a party wants to rely on the document which is more than 20 years old by obtaining, even a recent certified copy thereof, then that certified copy will reproduce the endorsement made by the Registrar and that endorsement would raise a presumption under Section 90(2) of 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'.

Thus, a certified copy of an original 20 years or more than 20 years old would now fall only under Section 90(2) and a presumption as to execution, handwriting and attestation could all be made under Section 90(2). It would not be hit by Section 90A(2) which says that if the certified copy is the basis of the suit, the presumption is not available.

In fact, section 90A of UP was intended to cover cases of certified copies of original documents which were registered and the execution of the original was on a date less than 20 years by the date of production of the certified copies in the Court. Here the presumption is restricted only to 'execution by the person' and the presumption is not available if the document is the basis of the suit or defence.

The 69th Report also recommended a provision like Section 90A(1)(2) of the UP amendment (see para 41.32 to 41.38) but with some slight changes we shall now refer to them.

The little modification was that with regard to certified copies 'judicial records' referred to in Section 90A(1), the presumption should be confined to (see para 41.38) (a) registered document, (b) documents adjudged to be genuine in an earlier case.

In our view while proposing section 90A, which corresponds to the UP Section 90A, we shall keep in mind (1) the point decided by the Allahabad Full Bench in Ram Jos case AIR 1980 All 385 (FB) and the suggestion in para 41.38 of the 69th Report, referred to above. Section 90A, under the UP Act applies to "any registered document, or duly certified copy thereof or to any certified copy of a document which is part of the record of a court of justice". So far as the 'duly certified copy thereof 'is concerned it is the one which is issued by the registration authority.

So far as the 'any certified copy of a document which is part of the record of a court' is concerned, if the document filed into court was in itself a document in original which is registered, the court would be giving a certified copy of an original document which is registered and its execution by that person can be presumed. So far as the other original documents are concerned, if the court gives a certified copy its genuineness can be presumed only, if such genuineness was adjudged in a previous case.

This is because, it is customary for some parties to file a forged document in (say) a proceeding under the Tenancy Laws, take a certified copy from the Court, and file the copy in the Civil Court. Such certified copies cannot raise a presumption of genuineness unless genuineness was decided by the Tenancy Court.

Section 90A of the UP Amendment refers to 'proper custody' and in so far as the said words qualify 'registered document', there is good reason but the 'proper custody' principle has been applied even to a 'duly certified copy thereof or any certified copy of a document which is part of the record of a Court of Justice'. This latter qualification is, in our view, not warranted because the certified copy from the Registrar's office or from the court records may even be a recent one obtained just before the present suit.

We accept these recommendations and suggestions. We propose renumbering section 90 as section 90(1) and insert subsection (2) as done under the UP Act, 1954. We add a separate section 90A as under the UP Act of 1954. Section 90 applies to documents which are 20 years old or more. Section 90A applies to certain documents less than 20 year's old.

We recommend the following revised Section 90 and 90A.

"90. Presumption as to certain documents 20 years old.- (1) Where any document, purporting or proved to be twenty 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 person by whom it purports to be executed or attested.

(2) Where any such document as is referred to in subsection (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, 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 person by whom it purports to have been executed or attested.

Explanation.- Documents referred to in sub-section (1) 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 and clause (a) of section 90A.

Illustrations

(a) A, has been in possession of landed property for a long time. He produced from his custody deeds relating to the land, showing him titles 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, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.

90A. Presumption as to certain documents less than 20 years old.- Wher.-

(a) any document registered in accordance with the law relating to registration of documents is produced from any custody which the Court in the particular case considers proper, and which registered document is less than twenty years old; or

(b) a duly certified copy of a document registered in accordance with the law relating to registration of documents, the original of which is less than twenty years old, is produced; or

(c) a duly certified copy of a document which is part of the record of a Court of justice, the original of which has been proved to be genuine in the earlier case and the original of which is less than twenty years old, is produced, the registered document mentioned in clause (a) or the originals of the documents referred to in clauses (b) or (c) may be presumed by the Court to have been executed by the person by whom it purports to have been executed:

Provided that no such presumption shall be made under this section, 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."

Section 90A

This section was introduced by Act 21/2000. It shall be renumbered as section 90B.

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