Holding

The presumption of due execution under Section 90 does not apply to a copy or certified copy of a document, even if thirty years old, unless the original is produced or loss is proved, and therefore the appeal is dismissed.

Summary

The respondents filed a suit seeking declaration of ownership and possession of land, alleging that a 1950 registered sale deed in their favour was forged. The trial court accepted the presumption of due execution under Section 90 of the Evidence Act based on a certified copy of the deed, but the appellate courts set aside that finding, holding that the presumption does not apply to a copy or certified copy. The appellants contended that the thirty‑year‑old deed should enjoy the statutory presumption and that the High Court erred in refusing it. The Supreme Court examined the scope of Section 90, noting that Privy Council decisions disallow the presumption for copies unless the original is produced or loss is proved under Sections 63/65. It held that because the deed was alleged to be forged, the original document had to be produced and the presumption could not be invoked. Consequently, the Court dismissed the appeal with costs.

Issues considered

Whether the presumption of genuineness under Section 90 of the Evidence Act applies to a certified copy of a document that is more than thirty years old.
Whether a court may refuse to apply Section 90 when the document is specifically alleged to be forged and the original is not produced.
Whether the production of a copy under Section 65, supported by proof of loss or destruction, suffices to invoke the presumption of due execution.

Legislation cited

Indian Evidence Act, 1872s. 63, s. 65, s. 90

Subjects

Evidence ActSection 90presumption of genuinenesssecondary evidencecertified copyforged documentdocument authenticityproperty titlelimitation

Judgment

L
SRI LAKHI BARUAH AND OTHERS A
v.
SRI PADMA KANTA KALITA AND OTHERS

FEBRUARY 26, 1996

[G.N. RAY AND B.L. HANSARIA, JJ.] B

Evidence Act, 1872: Sections 63 and 90.

Documents 30 years old-Alleged to be forged and f abricated-Produc-
tion of ce1tified copy thereof-Presumption of genuineness-Applicability of- C
Held : did not apply to a copy or certified copy even though the document
was very old-Unless foundation was laid for its admission as secondary
evidence by proof of loss or desttuction of the 01iginal and the copy having
been produced from proper custody-Cowt has discretion in giving the
presumption under Section 90 when due execution of document was do.ubt-
ful--In view of the definite case of document being forged and fabricated, D
original was required to be produced.

The respondents filed a suit for a declaration that they were the
lawful owners of the suit property and for recovery of possession thereof
by evicting the appellants from the suit property. The Trial Court dis- E
missed the suit but the appellate Court found that the sale deed was
forged and thus null and void. The High Court dismissed the appeal filed
by the appellants. Aggrieved by the High Court's judgment the appellants
preferred the present appeal.

On behalf of the appellants it was contended that the sale deed was F
a registered document and certified copy of the same was filed in the suit
proceedings; and that the High Court had erred in not giving the presump-
tion flowing from Section 90 of the Evidence Act, 1872 only because
certified copy was filed.

Dismissing the appeal, this Court
G

HELD : 1.1. Presumption under Section 90 of the Evidence Act, 1872
does not apply to a copy or a certified copy even though it might be thirty
years old; but if a foundation is laid for the admission of secondary evidence
· under Section 63 of the Evidence Act by proof of loss or destruction of the H
1043
l
1044 SUPREME COURT REPORTS [1996] 2 S.C.R.

A original and the copy which is thirty years old is produced from proper
custody, then only the signature authenticating the copy may under Section
90 be presumed to be genuine. It is the discretion of the Court to refuse to
give such presumption in favour of a party, if otherwise, there is occasion to
doubt due execution of the document in question. [1051-G-H; 1052-B)

B Seetnayya v. Subramanya, AIR (1929) PC 115 and Basant v. B1ijraj,
AIR (1935) PC 115, approved.

Khetter v. Klzetter Paul, ILR 5 Cal 886, overruled.

C 1.2. In the facts of the present case, the presumption under Section
90 of the Evidence Act was not available on the certified copy produced by
the appellants. The respondents' definite case was that the sale deed in
favour of the appellants was a forged and fabricated document. Therefore,
there was a requirement to produce the original copy so that the question
of due execution by the respondents could have been contested by the
D parties. [1052-A-B]

.CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3866 of
1996.

From the Judgment and Order dated 17.12.93 of the Assam High
E Court in S.A. No. 46 of 1993.
P.K. Goswami, C.K. Sasi, Kailash Vasdev and Ms. Vanita Sahni for
the Appellants. ,i. -

AK. Ganguli and Ms. V.D. Khanna for the Respondents.
F
The Judgment of the Court was delivered by

G.N. RAY, J. Leave granted. Heard learned counsel for the Parties.

This appeal is directed against Judgment dated December 17, 1993
G passed by the High Court of Guwahati in Second Appeal No. 46 of 1993.
By the aforesaid J udgmttnt, the High Court dismissed the appeal preferred
against judgment and decree dated March 29, 1993 passed by learned
Assistant District Judge. Sonitpur in Title Appeal No. 7 of 1992 reversing
the Judgment and decree dated February 28, 1992 passed by the learned
H Munsif. Ilnd Court, Tezpur passed in Title Suit No. 55 of 1981.
l LAKHIBARUAHv. PADMAKANTAKALITA[G.N.RAY,J.] 1045

Shri Pushpa Kanta Kalita and Shri Padma Kanta Kalita, Namely A
plaintiff Nos. 1 and 2, instituted Titled suit No. 55 of 1981 in the Court of
learned Munsif at Tezpur against defendants Smt. Alkon Baruah, Shri
Dakshi Baruah, Shri Basu Baruah, Shri Bikash Baruah, Shri Babul Baruah,
Shri Jiban Baruha and Smt. Sonmal Baruah for a declaration that the
plaintiff No. 1 was the sole and lawful owner of the lands in Schedule A B
to the plaint and for further declaration that the registered sale Deed of
1950 of Tezpur was forged, null and void and was inoperative so far as the
plaintiff No. 1 was concerned and also for a declaration that plaintiff No.
2 had right title and interest in the lands as described in Schedule B to the
P!aint by virtue of his purchase of the said lands from plaintiff No.1. The
prayer for consequential relief by way of delivery of the possession of the C
suit property to the plaintiff No. 2 after evicting the defendants from the
said lands was also made.

The case of the plaintiff, inter alia was that one Sumitra Kalitani was
the sole and absolute owner of lands measuring about 7 bighas 3 kathas 12 D
lachas comprised under Old Dag Nos. 624, 790, 780, 796, 788, 816, 818 and
986 appertaining to Old Periodic Patta No. 239 of village Dekasunder,
Mauza Borpnagia in the District Darrang, Assam with an ancestral house
on a portion of the said lands. Plaintiff No. 1 Shri Pushpa Kanta Kalita was
born to Simitra on March 14, 1979 in the said village Dekasunder but the
said Simitra Kalitani died within about two there months from the date of E
birth of Pushpa Kanta. Father of Pushpa Kanta, Thalluk, also died after
about for years and the plaintiff No. 1 Pushpa Kanta was thereafter brought
to and maintained by his grandmother (mother's mother). Late Jabari
Kalitani, in the said ancestral house upto the age of 8 and 9 years of the
plaintiff No. 1. Thereafter, the said Jabari Kalitani also died and plaintiff p
No. 1 became an orphan and there was no one to look after him and him
aforesaid properties of which he became owner by succeeding the interest
of his mother Sumitra Kalitani. Taking advantage of the helpless condition
of plaintiff No. 1. Pushpa Kanta, one Holiram Baruah, since deceased and
. husband of respondent No. 1. started torturing the plaintiff No. 1 with
malafide intention of wrongfully grabbing the properties of plaintiff No. 1. G
As a matter of fact, on one occasion the plaintiff No. 1 was mercilessly
beaten by the said Holiram Baruah causing fracture and dislocation of back
and wrist bone for which the plaintiff No.1 became partially disabled.
Coming to know of such torture meted out to the plaintiff No.1 his baternal
· uncle Shri Kaminath Bora had brought the plaintiff No,1 to the residence H
1
1046 SUPREME COURT REPORTS [1996] 2 S.C.R.

A of Kaminath at village Maghab, Borhampur,in order to ensure security of
plaintiff No.l. The plaintiff No. 1 remained there till he had attended
majority and also for some more years. Thereafter, he acquired some lands
at village Hatinga Rampur and had been living in the said village Hatinga
Rampur with the members of his family by constructing a house. The lands
and house of the plaintiff No. 1 at Village Dekasundar were used to be
B looked after by Smt. Jabari Kalitani his maternal grandmother till her death
and thereafter by the uncle of plaintiff No.l, Kaminath Bora till plaintiff
attained majority. The plaintiff No. 1 after attaining majority had been
managing and enjoying the entire property at Dekasunger by exercising
actual physical control and the name of plaintiff No. 1 had also been
C mutated in respect of the said lands.

Plaintiff No. 1 thereafter sold and transferred lands measuring 1
bigha 19 leases described in Schedule B to the plaint to Shri Padma Kanta
Kalita, plaintiff No. 2 by registered Deed of Sale No. 1553 of 1980 for a
D sum of Rs. 3,000 and delivered possession of such lands to plaintiff No. 2
who had been possessing and occupying the same since after purchase. The
said Padma Kanta Kaiita got his name mutated in respect of the lands
purchased by him. It was averred in the plaint that the defendants being
heirs of Holiram Baruah, since deceased, had their houses near the suit
lands and the said defendants were the persons of desperate nature. Taking
E advantage of living near the disputed lands, the said defendants with the
help of their men illegally and forcefully trespassed into B Schedule lands
February 15, 1981 with an ulterior motive to grab the said properties and
started to prepare kuchha bheti of a temporary house. For such alleged
illegal activitie.s, the plaintiff No. 2 made a complaint out of which proceed-
F ing under Section 145 Criminal Procedure Code was initiated. It is the
further case of the plaintiffs that in the said proceedings under Section 143
Criminal Procedure Code. It was disclosed that the defendant No. 4 hacl
filed an application in February. 1981 before the Settlement Officer. Dar-
rang at Tezpur for cancellation of mutation of the name of plaintiff No.2
G in respect of Schedule B lands and the said defendants No. 4 had also made
a prayer in his petition dated February 11, 1981 before the Settlement
Officer for mutation of his name by alleging that his father Holiram Baruah
had purchased the said lands by registered Sale Deed No. 76 of 1950 from
the plaintiff No. 1. The plaintiff thereafter caused search and obtained the
certified copy of the said alleged registered deed of sale from the Sub-
H Registry Office at Tezpur on March 13, 1981 and it transpired from the
L
LAKHIBARUAHv. PADMAKANTAKALITA[G.N.RAY,J.] 1047

said certified copy that a purported sale deed was executed by the plaintiff A
No. 1 in favour of Holiram Baruah thereby conveying 2 bighas 2 Kathas 6
lessas of lands described in the Schedule A to the plaint in favour of
Holiram Baruah. The plaintiff stated that on the date of the said alleged
sale by the plaintiff No.1, namely, on January 1, 1950 in favour of Holiram
Baruah, the plaintiff No. 1 was a minor and he did not executed the above B
Sale Deed or any document in favour of Holiram Baruah. The plaintiffs
therefore contended that the registered Sale Deed No. 78 of 1950 was a
forged, null and void document by which no title had passed to holiram
Baruah or any successor in interest of Holiram Baruah. As the title to the
suit lands was disputed by the defendants, the aforesaid suit for declara-

-- tion of title and recovery of possession by evicting the defendants had been C
instituted by the said plaintiffs.

The dflfendants contested the said suit by filing the written state-
ments, inter alia, contending that the plaintiffs had no cause of action. The
defendants contended that the plaintiff No.1 executed the said registered D
Sale Deed in favour of Holiram and delivered possession of the lands sold
by him to the said Holiram and on the date of the execution of the Sale
Deed, the plaintiff No. 1 was not a minor but was aged about 25 years. The
defendants also contended that the sale deed in favour of plaintiff No. 2
was invalid and the plaintiff No.1 having no title to the disputed lands on
the date of transfer could not transfer the B Schedule lands to the plaintiff E
No. 2, The defendants also contended that ever since the aforesaid pur-
chase by Holiram Baruah in 1950, he had exercised possession of the lands
and thereafter the ~efendants had been possessing the said lands. The
defendants also denied that the plaintiff became an orphan at a tender age
and Holiram Baruah had ever committed any act of torture on plaintiff F
No. 1.

After considering the case of the parties and the evidences adduced,
the learned Munsif by Judgment dated April 4, 1992, inter alia, came to
the finding that the Sale Deed dated January 1, 1950, executed by plaintiff
No. 1 in favour of Holiram Baruah.was a genuine document and plaintiff G
No. 1 was major at the time of the execution of the Sale Deed. In view of
such finding, the learned Munsif held that there was no nece'ssity to
examine the question of limitation for the maintainability of the suit. The
learned Munsif also declined to accept certain documents which were
sought to be filed by the plaintiffs to prove the date of birth of the said H
1048 SUPREME COURT REPORTS (1996] 2 S.C.R.

A plaintiff No.1. The learned Munsif dismissed the said suit.

The plaintiff No. 2, predecessor-in-interest of the present of the
present respondents, thereafter preferred Title Appeal No. 7 of 1992 in the
Court of the Assistant District Judge, Sonitpur. The learned Assistant
District Judge considered the school Certific_ate issued on March 31, 1946
B in favour of the plaintiff No. 1 and came to the finding that the plaintiff
must have been born in 1934 and at the date of execution of the said sale
deed in favour of Holiram Baruah in 1950, the plaintiff No. 1 was minor.
The learned Judge also came to the finding that the document of sale
stated to have been executed by plaintiff No. 1 in favour of Holiram Baruah
C was forged, null and void. The Judgment and decree of the learned Munsif
were set aside· and the suit filed by the plaintiffs was decreed by the learned
Assistant District Judge. The appellants thereafter preferred a Second
Appeal No. 46 of 1993 before the High Court of Guwahati and by the
impugned judgment dated December 17, 1993, the High C~urt dismissed
the appeal.
D
Mr. Goswami, learned Senior counsel appearing for the appellant,
has submitted that plaintiff No.1 Pushpa Kanta was major on the date of
execution of the sale deed in favour of Holiram. Even if the findings of the
learned Assistant District Judge that Pushpa Kanta plaintiff No. 1 Was born
E in 1934 and at the time of execution of the deed of sale by him in favour
of Holiram he was minor ~re accepted to be correct, the said Pushpa Kanta
had attained majority within a few years after the sale. The title suit was
filed by the plaintiffs in 1981. Hence, s~ch suit was barred by limitation.·
Question of limitation strikes at the root of maintainability of the suit.
F Hence, the course had imperative duty to go into the question of main-
tenance of the suit on the score of its being barred by limitation.

Mr. Goswami has submitted that when the suit was filed in 1981 the
document of sale executed by plaintiff No. 1 in favour of Holiram in 1950,
was more than 30 years old. Presumption of valid execution of such old
G document arising under ,.5ection 90 of the Evidence Act was in favour of
the- defendants. Hence the contention of the plaintiffs no such deed had
been executed by the plaintiff Nc.1 could be accepted. The trial court had
rightly held that it must be presumed that the deed of sale _had been
executed by the plaintiff No. 1. On:e such execution by the plaintiff No. 1
I-! is accepted, it must be .held that plaintiff No. twas required to get such
L
LAKHIBARUAHv. PADMAKANTAKALITA(G.N.RAY,J.] 1049

deed executed by him to be avoided by filing a suit within the period of A
limitation. Mr. Goswami has submitted that the said deed of sale was a
registered document and certified copy of the same was filed in the suit.
He has submitted that the High Court has erred in not giving the presump-
tion flowing from Section 90 of the Evidence Act only because certified
copy was filed. He has, therefore, submitted that gross injustice has been B
meted out to the appellants and the appeal should therefore be allowed by
setting aside the impugned judgment and decree and dismissing the suit
filed by the plaintiffs.

Mr. Ganguly, learned Senior counsel appearing for the respondents, C
ha:s however disputed the contentions of Mr. goswami. Mr. Ganguly has
submitted that the plea of limitation has no basis because execution of-the
sale deed by the plaintiff No. 1 in favour of Holiram has not been estab-
lished. Mr. Ganguly has submitted that the custody of disputed sale deed
must be with the defendants, presumptions as to document being thirty
years old is not available in respect of the certified copy of the document. D
In this case, execution by plaintiff No. 1 was denied. The plaintiffs could
have established the case of fabrication and forgery of the said deed of sale
' if the original document would have been produced. In order to evade the
risk of being detected about commission of forgery in respect of the
signature of the plaintiff No. 1. The defendants deliberately did not E
produce the original sale deed. Mr. Ganguly has therefore, submitted that
no interference is called for in this appeal and the same should be dis-
missed with cost. •

After hearing the learned counsel for the parties and considering the F
judgments of the courts below and materials on record, it appears to us
that there is no dispute that Pushpa Kanta succeeded to the title to the
properties in suit by way of intestate succession of his mother's. The
defendants admitted such position but the case of the defendants is that
Pushpa Kanta had conveyed his right title and interest in the disputed
property in favour of Holiram, the predecessor-in-interest of the defon- G
dants by executing a Sale Deed in 1950. Such claim of title by Holiram and
his successors-in-interest is disputed on the ground that plaintiff No.1
pushpa Kanta was minor on the date of alleged sale deed and he had not
executed any such sale deed in favour of H.oliram and such deed is a
product of forgery and fabrication. H
......

1050 SUPREME COURT REPORTS [1996) 2 S.CR.

A In the a(oresaid facts, defendants were required to establish that
Pushpa Kanta had in fact conveyed title by executing the sale deed as
alleged. The deed of sale was not sought to be proved by leading evidence
about valid execution of the same or payment of consideration by Pushpa
Kanta in favour of Holiram by examining proper witnesses. But an attempt
was made to prove the execution of the said deed of sale with the aid of
B Section 90 of the Evidence Act. Since the alleged sale deed was more than
thirty years old on the relevant date, presumption of due execution of same
flowing from Section 90 was relied upon. The trial court accepted the case
of execution of a sale deed by Pushpa Kanta in favour of Holiram on the
basis of presumption arising from Section 90 of the Evidence Act; but the
c learned Assistant District Judge and the High Court did not allow the claim
of presumption in favour of valid execution of said deed of sale by indicat-
ing that presumption flowing from Section 90 was not available because the
original Sale Deed was not placed before the Court. If the Sale Deed on
which the defendants base their title is not proved, there is no occasion for
D interference with the impugned judgment. It is, therefore, necessary to
consider whether presumption flowing from Section 90 was available to the
defendants. ·

It will be appropriate to refer to Section 90 of the Evidence Act
which is set out hereunder :
E
Section 90 Presumption as to documents thirty years old - Where
any document-Purporting or provep 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
F every other part of such document, which purports to be in the
handwriting of any particular person, is in that person's handwrit-
ing, 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 and attested.
,.
G Section 90 of the. Evidence Act is founded on necessity and con-
venience because it is extr.~m~ly diffic~lt and sometimes not possible to
lead evidence to prove hand~iting, signature ,or execution of old docu-
ments after lap_se of thirty years. In ord~r to obviate such difficulties or
improbabilities.to prove exec~tion of an old document. Section 90 has been
H incorporated in the Evidence Act, which does away with the strict rule of
l LAKHIBARUAHv. PADMAKANTAKALITA[G.N.RAY,J.] 1051

proof of private documents. Presumption of genuineness may be raised if A
the documents in question is produced from proper custody. It is, however,
the discretion of the Court to accept the presumption flowing from Section
90. There is however, no manner of doubt that judicial discretion under
Section 90 should be exercised arbitrarily and not being informed by
reasons.
B
So far as applicability of presumption arising from Section 90 of the
Evidence Act in respect of copy of the old document is concerned, the
earliest decision of the Indian Court was made in 1880 in Khetter v. Khetter
Paul, ILR 5 Calcutta 886. Later on. In the decision of various High Courts
the presumption under Section 90 was also made applicable to the certified C
copy. The Privy Council, upon review of the authorities, however, did not
accept the decision rendered in Khetter and other decisions of the High
Court, where the presumption was attached also to copies, as correct. It
was indicated that in view of the clear language of section 90 the produc-
tion of the particular document would be necessary for applying the D
statutory presumption under Section 90. If the document produced was a
copy admitted under Section 65 as secondary evidence and it was produced
from proper custody and was over thirty years old, then the signature
authenticating the copy might be presumed to be genuine; but production
of the copy was not sufficient to justify the presumption of due execution
to the original under Section 90. In this connection, reference may be made E
to the decisions in Seetnayya v. Subramanya, 56 IA 146 : AIR 1929 PC 115
and Basant v. B1ijraj, AIR 1935 PC 115. In view of these Privy Council
decision, disproving the applicability of presumption under Section 90 to
the copy or the certified copy of an old document, in the subsequent
decisions of the High Courts, it has been consistently held by different High
F
Courts that production of a copy or a certified copy does not raise the
presumption under Section 90.

The position since the aforesaid Privy Council decisions being fol-
lowed by later decisions of different High Courts is that presumption under
Section 90 does not apply to ~ copy or a certified copy even though thirty G
years old; but if a foundation is laid for the admission of secondary
evidence under Section 65 of the Evidence Act by proof of loss or destruc-
tion of the original and the copy which is thirty years old is produced from
proper custody, then only the signature authenticating the copy may under
Section 90 be presumed to be genuine. H
1052 SUPREME COURT REPORTS (1996] 2 S.C.R.

A In the facts of this case, the presumption under Section 90 was not
available on the certified copy produced by the defendants and, in our view,
the High Court is justified in refusing to give such presumption in favour
of the defendants. We may also indicate that it is the discretion of the Court
to refuse to give such presumption in favour of a party, if otherwise, there
is occasion to doubt due execution of the document in question. The
B plaintiffs definite case was that the deed of sale in favour of Holiram was
a forged and fabricated document. In the aforesaid facts, there was ·a
requirement to produce the original copy so that the question of due
execution by plaintiff No. 1 could have been contested by the parties.

c In the aforesaid facts, no interference is called for in this appeal and
the appeal is dismissed with cost.

v.s.s. Appeal dismissed.