Presumtion under Section 90 is available only when document is proved to be 30 years old

 Plea for relaxation  of proof of documents cannot be granted as the antiquity of the document is the very reason for justification for it to be bestowed with the curial presumption that the signature and every other part of such document which purports to be the handwriting of any particular person, is in that person’s handwriting

The present matter dealt with the issue of law of presumption as contained in Section 90 of the Evidence Act and in particular execution and attestation of Gift Deed in the instant case. Appellant in the present matter rested his case on the favourable presumption contained in Section 90 of the Evidence Act i.e. that the Gift Deed being thirty years old should be taken as having been duly executed and attested.

It was observed that under Section 90, before any question of presuming a document’s valid execution can emerge, the document must purport and be proved to be thirty years old. It was further observed that although the date on which the document has been tendered in evidence or subjected to being proved/exhibited is the relevant date from which its antiquity is to be computed, it is necessary to underscore that it should be produced at the earliest so that it is not looked upon askance and with suspicion so far as its authenticity is concerned.

Section 68of Evidence Act prescribes that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Section 123 of the Transfer of Property Act, 1882 mandates that a Gift Deed pertaining to immovable property must be affected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 17 of the Registration Act, 1908 also requires that instruments of gift of immovable property “shall be registered.” Section 34, thereafter, requires the executants or their authorized representatives of the document executed for registration appear before the registering officer. However, the witnesses to a document need not also be the witnesses to its registration.

It was held that the plea for relaxation cannot be granted as the antiquity of the document is the very reason for justification for it to be bestowed with the curial presumption that the signature and every other part of such document which purports to be 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.

In the instant case, it was held that the registered Gift Deed sought to be proved/exhibited if occurred prior to the Gift Deed attaining the age of thirty years then Section 90 of the Evidence Act, 1872 would not be of avail, but if a testimony came to be tendered and recorded thirty years subsequent to the execution of the Gift Deed, then the presumption attached to Section 90 could be taken advantage of. Being a statutory requirement, Courts cannot alter the operation of the statute by reading into it as allowing a document aged 29 and one-half years to be open to the law’s presumption.

[Om Prakash (Dead) through his LRs vs. Shanti Devi & Ors.]
(SC, 05.01.2015)