STUDY ON PRESUMPTION AS TO THE DOCUMENTS OF 30 YEAR OLD DOCUMENTSce

STUDY ON PRESUMPTION AS TO THE DOCUMENTS OF 30 YEAR OLD DOCUMENTS

Subject title- Law of Evidence Submitted to- Asst. Prof. Pankaj Umbarkar Submitted by- Shruti Kamble Student Id: MU12BALLB001 Class- BA. LLB Year- 3rd Semester- 6th

MATS University MATS Law School

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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

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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

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STUDY ON PRESUMPTION AS TO THE DOCUMENTS OF 30 YEAR OLD DOCUMENTS Introduction 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. It is the procedural side of the law which lays down the rules of evidence. There rules are for the guidance of the courts upon the questions of reaching the truth and getting the assertions and facts proved before it. Assertions consist of facts, some of which are disputed and some are proved ones. Thus the law of evidence is relevant in deciding above issue in reaching to a conclusion, decision upon some disputed issues, facts. In short it is a procedural law which provides interalia, how fact is to be proved. It helps in preventing the wastage of court’s valuable time upon irrelevant issues. Documents are the important areas of evidence hence also the question of their determination of relevancy of the evidence submitted. The statue in order to simplify the court’s 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.

PRESUMPTION OF 30 YEAR OLD DOCCUMENT Document The term document has been expressed in Section 3 i.e. the interpretation clause of the Evidence Act. It suggest that Document means any matter expressed or described upon any substance by means of letters figures or marks or by more than one of those means intended to be used, or which they may be used for the purpose of recording the matter., for example, a writing is document, words printed, lithographed or photographed is a document, a map or plan is a document, am inscription on metal plate or stone is document or a caricature is a document. 1 It has been said that the word “document” as used in the law of evidence “should not be construed restrictively. Etymologically the word means something which shows or teaches and is evidential or informative in its character. Where the statement of parties containing the terms of a 1 Section 3, Evidence Act , 1872 3

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 4

supersession of any mode of proof. When a document is produced in evidence, certain presumptions may arise in regard to them. These presumptions are discussed in section 79 to 90. Some of the presumption as can be seen in Section 79 to 85 and section 89 are obligatory in the sense that the court is bound to draw them, and other presumption in Section 86 to 88 and Section 90, are merely permissive, in the sense that the court may or may not draw them. Presumption as to documents thirty years old:- 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 hand writing of any particular person, is in that person’s handwriting, and, in the case of 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 legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. Illustration:(A) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his title 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, connection of B, produces deed relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper. Under this section a presumption may be drawn in favour of document of thirty years old or what is known as Ancient Documents. Ordinarily whenever the execution of a documents is required to be proved, rules relating to the proof of the execution of a document is required to proved, rules relating to the proof of the execution of documents laid down in the forgoing section of this Chapter have to be compiled with. For Example, A executes a mortgage deed for sum of 5

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 6

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

6 Ali Hasan v Matiulla AIR 1988 All 7 Kripal Singn v Aas Kaur AIR 1997 P& H 7

When a presumption may be raised The following conditions have to be satisfied so as to enable the court to raise a presumption in favour of the documents under this section: Ancient Documents: 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 court may, but is not bound to presume that a thirty-year old document is genuine. For example, A executes a will in favour of B in the year 1949. The will is written by A’s lawyer C, and signed by A in the presences of A as attesting witness. Later, in the year 1975, disputes having arisen between B and F over the ownership of the property. B produces the will executed by A. B is exempted of proving the execution of the will as the document is 30 years old when it is tendered in evidence and the court may presume that the will in question was duly executed and attested by A, D and E respectively by whom it purports to have been executed and attested. It is not necessary in every case to prove that the document is 30 years old if intrinsically it purports to be that old. The period of 30 years must be reckoned from the date, the document purports to bear. If no date is given in a document it can be proved by extraneous evidence that it was executed thirty years ago. Thus, if a document is bearing the date by which it is 30 years old, or a document bearing no date but proved to be thirty years old, is produced from a proper custody its execution may be presumed by the court. The court should be cautious about the age of a document. A document may be written yesterday and a date of 30 years ago may be given. The period of 30 years is to be reckoned not form the date upon which the document is filed in court, but from the date on which, it having been tendered in evidence, its genuineness or otherwise become the subject of proof. The period of 30 years is to be commuted from the date of its exaction to the date on which it was sought to be put into evidence.

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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 9

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 person’s 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 10

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

Evidentiary value need of corroboration Ancient document are admissible in evidence upon proof that they have been produced form proper custody but their value has evidence must depend in each case upon the corroboration derivable from external circumstances. The presumption under section 90 can only be dispensed with the necessity of proving a document and does not touch the question of its evidentiary value the mere production of an ancient document unless supported by some corroborative evidence of acting under it or of modern position is entitles to little if any weight. 17 Apart from the

13 AIR 1954 SC 606 14 KEmpamma v Kallama, AIR 1992 Kant 282 15 Kandan Soren v Jitan Hemboram AIR 1973 Pat 206 16 Hiralal v Purshottam Das, AIR 1974 Guj 74 11

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 12

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 court’s 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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