Report No. 69

III. Computation of the Period

41.16. Computation of the period.-

These, then, are the general propositions as to the scope of the section and the conditions for its applicability. We may now look into a few points which deserve consideration. First, we may refer to the controversy that arose in the past as to the date upto which the period of 30 years is to be counted, and the date on which it is to begin.

41.17. Point of termination.-

As regards the date upto which the period is to be counted, the controversy was set at rest by the Privy Council1 and it is now settled law that the period of 30 years under the section is to be reckoned not upto the date upon which the document is filed in the court, but upto the date on which the document having been tendered in evidence, its genuineness or otherwise becomes subject of proof.

1. Surendra v. Mirza Mahomed, AIR 1936 PC 15 (17).

41.18. Starting point.-

As regards the starting point, the period is to be counted from the date which the document bears. For example, it is not the date of death of the testator (in the case of a Will).1

Where a document is undated, no presumption can be drawn under section 90, as it cannot be said that the document purports to be 30 years old. It must then be proved in the ordinary way2.

1. Sarat v. Panchan, AIR 1953 Cal 471 (472), paras..-6.

2. Veerabhadrayya v. Ramachandra, AIR 1923 Mad 764 (675).

IV. Duration

41.19. Period-whether should be reduced.-

Another question to be considered concerns the duration of the period. The period mentioned in section 90 is 30 years. The period of 30 years is one established by common law. Originally, even at common law, the period was 40 years1. It may be noted that the period has been reduced to 20 years2 in the U.P. by a local amendment3. The question is whether such an amendment should be made in the Act. In England, by the Evidence Act, 19384 the period has been reduced to 20 years.

1. Phipson Evidence, (1963), para. 1649, citing Gilbert Evidence, 1st Edn., p. 102.

2. The U.P. Civil Laws (Reforms and Amendment) Act, 1954 (U.P. Act 24 of 1954).

3. The U.P. Amendment is reproduced in Woodroffe and Ameer Ali Evidence, (1958) Vol. 2, commentary on section 90.

4. Section 4, Evidence Act, 1938 (1 and 2 George 6, C. 28).

41.20. Now, the rule authorising a presumption regarding ancient documents is one established for the sake of general convenience and founded on the great difficulty (and often the impossibility) of proof of handwriting after a long lapse of time.

41.21. Of course, any period that must be fixed in this context has to be arbitrary; but there does not appear to be a strong objection if the period is reduced to twenty years. With the complexity of life and numerous proprietary and business transactions which a person has to undergo in modern days, considerations of convenience justify the reduction of the period, as the number of documents entered into or maintained increases with the complexity of life.

41.22. Recommendation.-

We, therefore, recommend that the period should be reduced to twenty years from thirty years.

V. Copies-U.P. Amendment

41.23. Use of copies.-

While the discussion so far related to the period, we now turn to another point arising out of the section. It is now settled that section 90 does not apply to copies of the document. But, though the presumption under the section, as such, does not apply in respect of copies, proof of execution of the original document may be furnished by the peculiar nature of the copy. Thus, where the deed was registered and the certified copy bore the necessary endorsements of the sub-Registrar before whom the execution acknowledged the execution and was duly identified, proof of execution may be found in the certified copy itself.1

1. Pandappa v. Shillingappa, AIR 1946 Born 193 (197) (Lokur, J.).

41.24. It was held in an earlier Bombay case1 that sections 58, 59 and 60 of the Indian Registration Act, 1908 provide that the facts mentioned in the endorsements of the sub-Registrar may be proved by those endorsements, provided the provisions of section 60 of the Indian Registration Act have been complied with. This aspect is further illustrated by another Bombay case.2 In that case, the trial court had admitted in evidence the certified copy of a deed of adoption merely on the ground that the original was lost and that it was more than thirty years old. The first appellate court held that as the execution of the deed had not been proved, it should not have been exhibited.

1. Thanu v. Govind, (1907) 9 Born LR 407.

2. Vishwanath v. Robihai, AIR 1931 Born 105.

41.25. In the second appeal, Baker J., reversing the decision of the first appellate court, held that the facts mentioned in the endorsements of the Sub-Registrar could be proved by those endorsements themselves if section 60 of the Registration Act is complied with; and, in the case before the court, the endorsements showed that the executant had admitted execution of the document and given his thumb impression and had been identified before the Sub-Registrar; therefore, the copy of the adoption deed was admissible in evidence, and was sufficiently proved.

41.26. U.P. Amendment as to certified copies.-

In this connection, we may mention that the U.P. Legislature has, by a local amendment1, inserted, in section 90, a provision to deal with certified copies of ancient documents which are registered. This has been done, by renumbering section 90 as section 90(1), and adding the following sub-section in section 90:-

"(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 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."

1. The U.P. Civil Laws (Reforms and Amendment) Act, 1954 (U.P. Act 24 of 1954), reproduced in Woodroffe and Ameer Ali Evidence, (1958), Vol. 2, p. 928.

41.27. Recommendation.-

We think that this limited extension of the section should be adopted and we recommend accordingly.

41.28. Recommendation in previous Report as to certified copies.-

The question whether the presumption under section 90 should be made applicable to certified copies of documents 30 years old has been considered in a previous Report of the Law Commission1. The Commission expressed the view that no inherent testimony was afforded by certified copes as to the circumstances under which the original came into existence or for deciding whether the original itself possessed any features which would have destroyed or affected its validity.

1. 14th Report Vol. 1, para. 9, first sub-paragraph and para. 10.

41.29. The presumption under section 90 is based on two requirements-that the document should be 30 years old, and that the document must be produced from custody which the Court considers to be proper. After noting these two ingredients of the section, the Commission observed-

"By what process of reasoning could the court raise these presumptions in regard to the original documents when all that is produced before it is mere certified copy? It may be that the original of which a certified copy-more than 30 years old is produced was a fabricated document. It does not, therefore, seem to us reasonable to extend these presumptions to the original when it is not before the Court for these reasons we do not recommend the acceptance of the suggestion. What we recommend is that questions relating to ancient documents may be examined by the Commission when revising the Evidence Act."

We may state that we broadly share this approach, subject to what we have recommended above as to certified copies of registered documents.

VI. Section 90 and section 68

41.30. We have now dealt with all the points that needed discussion. We do not pause to examine the inter-relationship between section 68 and section 90. The question as to how far section 90 should override the provisions of section 68 has been discussed separately.1

1. See discussion relating to section 68.

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