1982 PLP 1712 (CLC)

(a) section 90 of the Evidence Act, which relates to presumption attached to documents of thirty years age, reads :‑ `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 signature and every other part of such document, which purports to be in the hand writing, 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.' The reading of this section would show that it says only that a Court may presume and not that it must presume. In view of the danger of the blind acceptance of a document as genuine for all purposes merely because it purports to be more than thirty years old and is produced from proper custody, considerable care and caution should always be exercised in accepting documents of more than thirty years age. Such documents can always be prepared or forged and that is why it is always insisted upon that the Court ought to be aware of the danger of treating old documents as established merely because they are thirty years old and come from proper custody. One has to take into consideration the surrounding circumstances. One of the important considerations, besides others, in my view, should be whether the document is acted upon or not and whether it was supported by possession or not. Too much importance cannot be attached to resemblance or even to opinion of experts about them. Besides a presumption under section 90, Evidence Act, only extends to the genuineness of the document and it does not go further to the extent of holding that the document was, in fact, executed by a person possessed of requisite authority. Therefore, the mere production of the ancient docu ment, unless supported by some corroborative evidence of acting under it, is not entitled to any weight. I may here refer to some of the authorities having bearing on the issue In Gobinda Chandra pal and others v. Pulin Behari Bannerjee and zithers A I R 1927 Cal. 102 while dealing with this aspect of the matter it has been observed:‑ "The presumption contained in section 90 has always got to be applied with a good deal of caution. Regardless of the question as to whether the document in question forms the foundation of the party's right or whether it was sought to be used as a piece of evidence the Court may, in a proper case, rely upon the presumption contained in section 90.' In Special Manager, Court of Wards, Balrampur v. Lal Bahadur Sing A 1 R 1937 Oudh 353 adverting to the issue, it has been stated : 'A presumption under section 90, Evidence Act, only extends to the genuineness of the document but does not go further in the extent of holding that the document was in fact executed by a person posses sed of the requisite authority. The Courts should be very careful about raising any presumption under section 90 in favour of deeds which are produced practically for the first time during the trial of suits in which proprietary rights are set up on the basis of these deeds. The mere production of an ancient document unless suppor ted by some corroborative evidence of acting under it is not entitled to any weight. An ancient deed must be corroborated by evidence of ancient or modern corresponding enjoyment or by other equiva lent or explanatory proof; it is then presumed to have constituted part of the actual transfer of the property mentioned, and the Court may then make presumption under section 90 of the Act.' Same view prevailed in 'Mst. Shamsha v. Sherdil Khan and others P L D 1954 Pesh.

106. It has been observed in that case :‑ 'It is open to the Court, although not imperative to raise a presumption 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 that it was duly executed and attested by the persons by whom it purports to be executed and attested, under section 90 of the Evidence Act. But then this presumption must be applied with considerable care and caution, because forgery and fraud cannot reasonably be said to be of rare occurrence.' (b) The rule of presumption under section 90 of the Evidence Act as to the genuineness of a document, it may be stated, is a matter which is eminently within the discretion of the trial Court and it is not compulsory upon any Court to draw, a presumption that a docu ment of thirty years old is genuine. My view finds support in Surendra Nath Dobey and others v. Sambhu Nath Dobey and others A I R 1927 Cal.

870. It has been observed in that case :‑ 'Now, as regards this contention it is sufficient to say that upon the plain language of section 90 the presumption that is referred to in that section is not one which it is obligatory on a Court to raise in favour of a person who desires to prove a document more than 30 years old, but that it is discretionary with the Court either to rely on that presumption or not.' Again in Sardara v. Akbar and others A I R 1937 Lab. 17, it has been observed :‑‑ , 'The rule of presumption laid down in section 90 must be applied with great caution and ancient documents which are unsupported by any evidence that might free them from the suspicion of being fabricated should not be acted upon; and if the lower Courts have exercised their discretion after considering all the circumstances, the High Court will not lightly interfere with it.' Raja Jaleshwazi Partap Narain Singh v. Peteshwari Bakbsh Singh and others A I R 1938 All 345. also owns the view enunciated above. It has been observed in that case :‑ A presumption under section 90 is not one, which a Court must draw. The Court has a discretion in the matter.'

6. It would thus appear that regarding ancient documents practically all the superior Courts are in agreement that if there are circumstances, both internal and external, which throw doubt upon its genuineness, the Court has the discretion under section 90 of the Evidence Act not to admit the document without formal proof and an appellate Court would always be extremely slow to overrule the discretion exercised by the lower Court. The rule of presumption, as said earlier, must be applied with great caution and where circumstances throw suspicion on the genuineness of a document, no presumption under section 90 of the Evidence Act can be drawn. The suspicion may be due to erasures or over writings in the document itself, or to circumstances which tend to raise doubts as to its authenticity.

7. The authorities being examined, this brings me now to the merits of the case. In this case the following circumstances were rightly taken into account by the Courts below in refusing to raise presumption of truth about the document :‑ (i) The possession, on the basis of this document, is not reflected in the revenue record. This fact shows that the document was not acted upon; (ii) The suit is at variance with the proof ; (iii) The document relates to survey No. 24 while in suit survey No. 44 is claimed by the petitioners; (iv) All the Courts below have concurrently concluded that the document stands unproved. There appears no reason to differ with this concurrent finding. It is settled that the Supreme Court cannot be a Court of error in disregard to the treatment of such evidence in the trial Court; and (v) The petitioners declined to place reliance on this document in the High Court and now they cannot be allowed to build up their case on a point abandoned in the High Court.

8. As the document, for the above‑stated reasons stands unproved, the protection to petitioners' possession under section 53‑A of the Transfer of Property Act does not arise and loses all importance. It would thus appear that the observation made in the above sited case completely answers the argument advanced by the petitioners in this case. For the above‑stated reasons the proposition regarding presumption of truth attached to an ancient document is well settled and I see no reason to re‑open: the same. This petition, therefore, fails with costs. S' Q. Petition dismissed.