Supreme Court: Presumption regarding documents 30 years old as per S 90 of evidence Act does not apply to a will

 This Court, in M.B. Ramesh (D) by L.Rs. v. K.M. Veeraje Urs (D) by L. Rs. and Ors.,8 while dealing with a similar argument regarding applicability of Section 90 in the case of proof of will, held as follows:

At the same time we cannot accept the submission on behalf of the Respondents as well that merely because the will was more than 30 years old, a presumption Under Section 90 of the Indian Evidence Act, 1872 ('Evidence Act' for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh v. Shamsher Singh reported in   MANU/SC/8404/2008 : 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act. {Para 12}

Ratio:

The presumption under Section 90 of Evidence Act, 1872 as to the regularity of documents more than thirty years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7775 of 2021 

Decided On: 14.03.2023

Ashutosh Samanta (D) by L.Rs. and Ors. Vs. Ranjan Bala Dasi and Ors. 

Hon'ble Judges/Coram:

S. Ravindra Bhat and Hima Kohli, JJ.

Author: S. Ravindra Bhat, J.

Citation:  MANU/SC/0233/2023

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Supreme Court: Presumption U/S 90 of Evidence Act is not applicable for proof of will

 At the same time we cannot accept the submission on behalf of the Respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872 ('Evidence Act' for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh v. Shamsher Singh reported in MANU/SC/8404/2008 : 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1071 of 2006

Decided On: 03.05.2013

M.B. Ramesh (D) by L.Rs. Vs.  K.M. Veeraje Urs (D) by L.Rs. and Ors.

Hon'ble Judges/Coram:

H.L. Gokhale and Ranjana Prakash Desai, JJ.

Citation: (2013) 7 SCC 490, MANU/SC/0462/2013

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Chhatis HC: Presumption U/S 90 of evidence Act can be raised in respect of executed documents only

It would thus be seen that the plaintiffs' case rests only on the certified

copy of the sale deed which do not contain the signature or thumb

impression of any of the parties or their witnesses. Even the copy of two

sale deeds, said to be available in the records, is not stated to contain

signature or thumb impression of the parties to the transaction or the

witnesses. The parties to the transaction were not available to be examined

as they are dead. No witness has been examined. There is no other

material on record to prove execution of sale deed. There is no evidence on

record to prove that there was an intention to sell the property for

consideration either paid or promised to be paid or part paid and partly

promised to be paid. Sale deed was executed in favour of Ishrat Khan by

respective vendors named in so called sale deed dated 11.11.1932 and

19.3.1934. Thus, the plaintiffs completely failed to prove execution of sale

deed so as to transfer a valid title in favour of Late Ishrat Khan.

14.Much reliance has been placed by learned counsel for the

appellants/plaintiff on the oral evidence of Abdul Shakil (PW3) that it has

been deposed by him that as per the then prevalent practice, copy of only

those documents were retained in the office which were executed,

therefore, a presumption will have to be drawn that sale deed was

executed. We are unable to accept this submission. In the absence of there

being proof of actual execution of the document of sale, particularly when

the plaintiffs were not allowed to lead secondary evidence, the evidence of

Abdul Shakil (PW3) would not, by itself, carry such a great probative value

as to hold that a transaction of sale had taken place in which consideration

passed, transaction of sale was completed, possession transferred in favour

of late Ishrat Khan.

15.Reliance placed in the case of Kaliya (supra) is of no help because that

deals with a situation where the party has been permitted to lead

secondary evidence by allowing his application under Section 65 of the

Evidence Act. In the present case, the application was dismissed as not

pressed.

16.Section 90 of the Evidence Act would also not come to the aid of the

plaintiffs, because it does not create presumption in respect of an ordinary

copy of a document. It is only when the document is executed then only

the presumption, in particular circumstances, would be available to be

made regarding genuineness of the document in so far as execution and

attestation thereof is concerned.

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal No. 22 of 2008

 Smt. Kadir Bee, W/o Late Ishrat Khan, Vs  Smt. Mumtaj Begum, W/o Latif Miyan Musalman, 

Division Bench : Hon'ble Mr. Justice Manindra Mohan Shrivastava

Hon'ble Mrs. Justice Rajani Dubey

Dated: 20/06/2018

Per Manindra Mohan Shrivastava, J.

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Whether presumption U/S 90 of Evidence Act is applicable to document like will?

On the point no. 3, regarding status of the suit property, as to whether it is trust property or not, arguments were vehemently submitted by Shri Vijay Dixit, Senior Counsel for the appellants, mainly on the ground that the plaintiff trust filed certified copy of the will, dated 13.7.1936, executed by Kasturmal Dalsukh Agrawal. Under this will, plaintiff trust was created and suit property was bequeathed in favour of the plaintiff trust. This will is registered on 19.10.1036. According to the learned Senior counsel for the appellant, learned Trial Court erroneously admitted this will and exhibited it invoking presumption under Section 90 of the Evidence Act. He submits that the will is a special document and it can be proved at least by examining one attesting witness to prove the compliance of Section 63 (c) of the Indian Succession Act, 1925 r/w Section 68 of the Evidence Act. He placed reliance on "Bharpur Singh and others vs. Shamsher Singh" [MANU/SC/8404/2008 : 2009 (3) SCC 687], wherein the Apex Court held that presumption regarding documents 30 years old is not applicable to will. The will must be proved in terms of Section 63 (c) of the Indian Succession Act, 1925. On the point of proof of will, he placed reliance on following authorities.

1] P. Laxman v/s. Thekkayil Padmini and others [2009 (3) Mh.L.J. 510]

2] Keshav Narayan Bharti vs. The State of Maharashtra and others [MANU/MH/1368/2006 : 2006 (3) BCJ 550]

3] M.B. Ramesh (D) by L.Rs. Vs. K.M. Veeraje Urs (D) by Lrs and Ors. [MANU/SC/0462/2013 : 2013 DGLS (SC) 375]

4] Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors. [MANU/SC/0530/1976 : (1977) 1 SCC 369]

5] Sridevi & others vs. Jayaraja Shetty & ors. [MANU/SC/0065/2005 : (2005) 2 SCC 784]

6] Niranjan Umerschandra Joshi vs. Mrudula Jyotirao & ors. [MANU/SC/8788/2006 : (2006) 13 SCC 433]

7] B. Venkatamuni vs. C.J. Ayodhya Ram Singh and Ors. [MANU/SC/4692/2006 : (2006) 13 SCC 449]

8] Anil Kak vs. Kumari Sharada Raje & Ors. [MANU/SC/7520/2008 : (2008) 7 SCC 695]

In reply, learned counsel for respondent nos. 1 and 2, though fairly submitted that presumption under Section 90 of the Evidence Act is not applicable to the document like will.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

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What are necessary conditions for drawing presumption U/S 90 of Evidence Act?

 This Court in Paramesh Sarmah & Ors. Vs. Islamali & Ors. (supra), held in para-9 as under:

"9. The condition on which the execution of a document may presume for:-

'(1) That it must have been existed for 30 years or more; (2) It must be produced in court from proper custody. (3) The document must be in appearance free from suspicion and doubt; (4) It must be in a handwriting of a person and should not be anonymous. Generally there is no presumption about recitals in ancient document, but in special circumstances a recital of consideration, legal necessity, etc., may be presumed under S. 90...................."

23. In Bipin Ch. Kalita Vs. Sarama Kalita & Ors. (supra), this court in para-21 held as under:

"The gravamen of the authorities referred to above, is that the presumption comprehend in Section 90 of the Act, is relatable to the writings, execution and the attestation of the document, the contents thereof, being subject to proof in accordance with law. Unerringly, the approach of a court in the matter of presumption under Section 90 of the Act has to be essentially to effectuate the purpose thereof and not to render it nugatory. Though, a court is endowed with a discretion to draw a presumption as enumerated in the section, the exercise thereof, has to be informed with objectivity to further the legislative intendment. Unless, the attending facts and circumstances on the face of the document renders its existence, execution and attestation impossible, a rebuttable presumption is raised in favour of the genuineness and authenticity thereof, casting a burden on the other side to establish the contrary."

IN THE HIGH COURT OF GAUHATI

RSA 107/2014

Decided On: 18.07.2018

 Nepurjan Bibi Choudhury Vs. Musabbir Ali Choudhury and Ors.

Hon'ble Judges/Coram:

Mir Alfaz Ali, J.

Citation: AIR 2018 Gauhati 151

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Whether it is necessary to prove contents of documents 30 years old?

Presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1374 of 2008

Decided On: 17.07.2012

 Union of India (UOI) Vs.  Ibrahim Uddin and Ors.

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Whether partition of joint family property can be proved by document thirty years old?

 Defendant No. 1 came with specific case that plaintiff
and Nandlal had separated from each other from prior to year
1944. He contended that in the year 1944, some writing was
done by plaintiff in favour of Nandlal to show that there was
separation. He contended that due to partition and writing, the

joint status had come to an end.

The learned counsel for appellants tried to use
section 90 of the Evidence Act in support of his submissions.

Section 90 of the Evidence Act runs as under :-
"90. 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 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.
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 a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81"
The aforesaid provision shows that discretion is given to the
Court by using words 'may presume' to presume due execution
or due attesting of such document. If there are suspicious
circumstances, Court can refuse to raise presumption available
under section 90. In the present matter, the Trial Court refused

to raise such presumption by giving reasons that this document
was never used by Nandlal or even by defendant No. 1 for any
purpose prior to its production in the Court. The Courts below
have observed that there is convincing record to rebut the
presumption which could have been raised in view of section 90
in respect of Exh. 363. This Court has already quoted the
material showing that the family continued to remain joint in all
respects and this record is considered by the Courts below also.
When the finding of the Court is about proof of execution and
section 90 needs to be used for the proof of execution, it
becomes purely matter of discretion and the Appellate Court is
not expected to interfere lightly in finding given by the Trial
Court in such circumstances. The scope of this Court in Second
Appeal is further reduced. For this reason, this Court is not
expected to interfere in the findings given by the Courts below in
respect of proof of execution and admissibility of Exh. 363 in
evidence.
27) The proof of execution cannot lead to inference that
the contents are correct. Whether such document could have
been considered for proof of execution is other question. The
proof of execution of Exh. 363 could not have been allowed in
the Court for other reasons also. The contents of this document

purport relinquishment of right in coparcenery property, which is
immovable property. Though there was admittedly some charge
on the property like house No. 1285 or even on the share in the
property from Shevgaon, there was the other property like share
in house No. 1286-87 purchased under the registered document.
There was big agricultural land at Shevgaon. As per the
provisions of Transfer of Property Act and the provisions of Indian
Registration Act, such document ought to have been registered.
It was necessary to pay the stamp duty also, if due to this
document plaintiff was to relinquish his rights in immovable
property. For this reason even for collateral purpose the
document could not have been used and proof of execution
could not have been allowed. The provisions of not only Indian
Registration Act, but also the other Act like Stamp Act would

have proved to be obstacle.

IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 215 OF 2002

Madanlal Nandlal Zawar V  Premsukh Ramdayal Zawar,

CORAM : T.V. NALAWADE, J.
DATED : 3rd May, 2016.
Citation: 2017(2) ALLMR 123

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Whether it is mandatory for court to draw presumption U/S 90 of Evidence Act?

The learned counsel for appellants tried to use
section 90 of the Evidence Act in support of his submissions.

Section 90 of the Evidence Act runs as under :-
"90. 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 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.
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 a legitimate origin, or if the
circumstances of the particular case are such as to
render such an origin probable.
This Explanation applies also to section 81"
The aforesaid provision shows that discretion is given to the
Court by using words 'may presume' to presume due execution
or due attesting of such document. If there are suspicious
circumstances, Court can refuse to raise presumption available
under section 90. In the present matter, the Trial Court refused

to raise such presumption by giving reasons that this document
was never used by Nandlal or even by defendant No. 1 for any
purpose prior to its production in the Court. The Courts below
have observed that there is convincing record to rebut the
presumption which could have been raised in view of section 90
in respect of Exh. 363. This Court has already quoted the
material showing that the family continued to remain joint in all
respects and this record is considered by the Courts below also.
When the finding of the Court is about proof of execution and
section 90 needs to be used for the proof of execution, it
becomes purely matter of discretion and the Appellate Court is
not expected to interfere lightly in finding given by the Trial
Court in such circumstances. 
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 215 OF 2002

Madanlal Nandlal Zawar V  Premsukh Ramdayal Zawar,

CORAM : T.V. NALAWADE, J.
DATED : 3rd May, 2016.
Citation: 2017(2) ALLMR 123

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When will which is thirty years old shall be deemed to proved even though no attesting witness is examined?

As noticed by the appellate Court it is no doubt true under Section 68 of the Evidence Act all documents compulsorily attestable should be proved by examining one of the attesting witnesses. But, Section 90 of the Evidence Act creates an exception and even in the absence of formal proof as required one can seek raising of the presumption under Section 90 of the Evidence Act if the document is 30 years old.

 On the basis of the evidence on record, it is clear that there were only two attesting witnesses and one scribe and all of them have died. If the attesting witnesses are not alive, the question of their examination in terms of Section 68 of the Evidence Act would not arise. At any rate, Ex.A2 is a registered will of 30 years old and in these circumstances, the appellate Court in the light of the evidence of witnesses on record and also on the basis that the document was of 30 years old raised a presumption under Section 90 of the Evidence Act and consequently held that Ex.A2 will was proved, Having regard to the evidence on record, I do not think that this finding of fact recorded by the appellate Court suffers from any infirmity.

Andhra High Court

Kesarapu Manikyalu vs Venna Perumallayya (Died) By Lrs. ... on 10 October, 1999

Equivalent citations: 2000 (1) ALD 32,2000 AIHC590 AP,AIR 2000(NOC)20 AP

Bench: B Raikote

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What is presumption in respect of will which is thirty years old as per S 90 of Evidence Act?

The counsel for the appellant relying on the decision reported in Munnalal v. Kashibai (AIR 1947 PC 15) contended that the presumption available in terms of S. 90 is available not only to the execution and attestation, but also to a presumption in favour of the testator capacity for such execution, because the presumption available under S. 90 is that it was duly executed and attested. In the said decision the Privy Council held that:

The will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower courts rightly held that the actual execution and attestation of the Will could be presumed under S. 90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of S. 90, since a will cannot be said to be "duly" executes by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who perform a solemn and rational at in the presence of witnesses is same and understands what he is about.

Therefore, there is no need for separate proof of testamentary capacity of the testator as the presumption available under S. 90 of the Evidence Act extends to that areas as well.

11. This aspect has been considered in several decisions by several High Courts. In Sarat Chandra v. Panchanan (MANU/WB/0174/1953 : AIR 1953 Cal. 471) it was held as follows:

A further question arises as to the extent of the presumption which arises under S. 90, Evidence Act. in regard to Wills. The Statute says that when a document purports to be executed and attested, the presumption is one of due execution and attestation. This involves the idea that the document was executed duly and attested duly: in other words, that the document Was validly executed. This involves a further contention that the testator had testamentary capacity to execute the Will.

In Venkata Rama Rao v. Bhaskararao (MANU/AP/0089/1962 : AIR 1962 AP 29) also it was held referring to AIR PC 15 that:

A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but in the absence of any evidence as to the state of testator's mind, proof out he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. Tins presumption can be justified in the case of a will more than 30 years old under the express provisions of S. 90, since a will cannot be said to be duly executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about.

Decision of a Division Bench of Madhya Pradesh High Court in Rameshwar Prasad v. Krishna (1969 MP 4) war of the same effect. Referring to the Privy council decision it was held in that case as follows:

In view of the law down in this decision we must accept that the Will was executed by the testator when he had a sound disposing mind.

It was further found taking note of the circumstances of providing maintenance to the available dependents that:

Under the circumstances, the presumption that the will was made by the testator with a sound disposing mind becomes much stronger.

The will considered by the Court was executed about 45 years back. The Madras High Court in Danapal v. Govindaraja (MANU/TN/0212/1961 : AIR 1961 Mad 262) held that:

Even prior to the decision of the Judicial committee this Court held in S. Kotayya v. Vardhamma, (MANU/TN/0106/1929 : 59 Mad LJ 461: AIR 1930 Mad 744) as follows:

The words duly attested in S. 90 of the Evidence Act justify not merely the presumption of execution and attestation but also a presumption in favour of the disposing power of the testator.
It is therefore clear that if the presumption under S. 90 of the Indian Evidence Act can be made available to the facts and circumstances of this case, no further proof of the mental capacity of the testator in Ext. B 11 is necessary.

Later the Rajasthan High Court in Moti Lai v. Sardar Mal (MANU/RH/0011/1976 : AIR 1976 Raj 40) held that:

The Will being more than 30 years old and produced from proper custody may be presumed to have been duly executed by the testator when he was in a sound disposing state of mind.

The court arrived at this decision relying on the decision in MANU/TN/0212/1961 : AIR 1961 Mad 262 and1 the said Privy Council decision and also the decision in MANU/AP/0089/1962 : AIR 1962 AP 29.

12. It is contended by the respondent that the presumption available is not always imperative because the word used in S. 90 is that the Court "may presume" rather than "shall presume" which are separately defined in S. 4 of the Evidence Act. Certainly it is the case of "may presume'; but that is a discretion vested with the-court which has to be exercised judicially and wherever circumstances warrant. In Dhanapal v. Govindaraja (MANU/TN/0212/1961 : AIR 1961 Mad 262) is was held that:

The language used in the Section is "may presume" and it is needless to say that the Court has got a judicial discretion to be exercised in drawing the presumption. But the Court cannot arbitrarily say that it will not draw the presumption merely because the matter is one for the exercise of its discretion. Thereat scope of S. 90 seems to (sic) in the normal circumstances, where it is found that the document in question emanates from an apparently lawful custody and were the documents is such that it is likely to have been exercised having regard to the common course of human conduct, and where there are no circumstances to excite the suspicion of the Court, such as unnaturalness and artificiality surrounding the transaction or an apparent interlineations or correction or correction or tampering with the document, the Court will draw the presumption.

Equivalent Citation: 1999(26)CivilCC(KERALA),2000AIHC2210 kerala

IN THE HIGH COURT OF KERALA

S.A. No. 971 of 1989 and Cross Objection

Decided On: 12.11.1999

 Acho Dominic Vs.  Xavier

Hon'ble Judges/Coram:
K.A. Abdul Gafoor, J.

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When court should not permit to draw presumption that document is thirty years old?

 The Appellant has, in his effort to succeed before us, variously and discrepantly theorised the thirty-year statutory requirement. As one ground in his Appeal, the Appellant has pleaded for a relaxation of the thirty year period, admitting the tendering in evidence of the Gift Deed on 14.10.99 in his examination-in-chief/statement by which time only 29 years 5 months had elapsed. The plea for relaxation cannot be granted as the antiquity of the document is the very raison d'etre 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. The Court could not have relaxed or discounted the short fall of seven months.

Supreme Court of India

Om Prakash(D) Tr.Lrs vs Shanti Devi & Ors on 5 January, 2015

Bench: Anil R. Dave, M.Y. Eqbal, Vikramajit Sen

Citation;2015(2) ALLMR492 SC

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