Where any document, purporting or proved to be thirty years old, produced from any custody which the Court considers proper, 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 document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. (S. 90)
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What is proper custody?
ADVERTISEMENTS:
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. However, no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. (S. 90, Expln.)
Illustrations of ‘Proper custody’:
(a) A has been in possession of landed property for a long time. He produces from his custody. 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.
ADVERTISEMENTS:
(c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited with him by В for safe custody. The custody is proper.
Ancient Documents:
The object of this section is not to make it too difficult for persons relying upon ancient documents to utilise those documents in proving their cases. It is intended to do away with the insuperable difficulty of proving the handwriting, execution, and attestation of documents in the ordinary way after a lapse of many years.
The principle underlying this section is that if a private document, which is thirty years old or more, is produced from proper custody, and is, on the face of it, free from suspicion, the Court may presume that it has been signed or written by the person whose signature it bears or in whose handwriting it purports to be, and that it has been fully attested and executed, if it purports so to be.
ADVERTISEMENTS:
In other words, documents which are thirty years old prove themselves. The age of a document, its unsuspicious character, the production from proper custody and other circumstances are the foundation for the presumption.
This rule is founded on necessity and convenience. It is often extremely difficult, and may sometimes be impossible, to prove the handwriting or signature or execution of ancient documents after a lapse of many years. It is, therefore, presumed that all persons acquainted with the execution of documents are dead, and proofs of those facts are dispensed with.
Thus, the presumption relates to the execution of the documents that is, signature, attestation, etc., in other words, its genuineness, but not to the truth of its contents. (Ramkrishna v. Gangadhar, A.I.R. 1958 Orissa, 26)
As stated above, when a document is or purports to be more than thirty years old, if it is produced from what the Court considers to be proper custody, it may be presumed (a) 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 (b) that it was duly executed and attested by the person by whom it purports to be executed and attested.
The presumption allowed by this section is not a presumption which the Court is bound to make, and the Court may require the document to be proved in the ordinary manner. It is in the discretion of a Court whether or not to raise the presumption in favour of a document covered by this section. But this discretion is not to be exercised arbitrarily; it must be governed by principles which are consistent with law and justice.
And while, on the other hand, it is clear that care is called for in applying the presumption, on the other hand, it is clear that very great injustice may be perpetrated, if an ancient document coming from proper custody is rejected by a Court capriciously or for inadequate reasons.
If a document purports to be an ancient document and to come from proper custody, the party relying upon it fails to satisfy the Court of its due execution, it does not follow that its genuineness will not be presumed. But if no such grounds exist, and it satisfies the conditions prescribed by S. 90 of the Act, then proof of execution is dispensed with, and it is to be dealt with on the same footing as any other genuine instrument.
The section requires the production of the document in regard to which the Court may make the statutory presumption. Production of a copy is not sufficient to justify the presumption. (Basant Singh v. Brij Saran, A.I.R. 1935 PC. 132). Therefore, the presumption can be raised only with reference to original documents, and not to copies thereof. If the document appears to be signed by the agent of the person, and if there is no proof that he was an agent, the section does not authorise the presumption on the part of the agent to represent that person. (Harihar Prasad v. Deonarin Prasad, A.I.R. 1956 S.C. 305)