Source: Jharkhand High Court

Why in News?

A bench of Justice Gautam Kumar Choudhary held that mere age of the document is not conclusive proof of it’s due execution.

• The Jharkhand High Court held this in the case of Sanjeeda Begam v. Md. Eqbal.

What is the Background of Sanjeeda Begam v. Md. Eqbal Case?

• Suit property consists of structures over plot no. 1393 and plot no. 1397.
• The ingress and egress to plot no. 1393 is through plot no. 1397 and there is no other passage. This passage was purchased by Fateh Mohammed through registered sale deed.
• Plaintiffs claim title through Fateh Mohammad.
• The defendants assert that the property was transferred by one Suleman Kristan to Gulam Mohammad.
• The petition in this case was filed under Section 71A of the Scheduled Area Regulation Act.
• It is the case of the plaintiff that the basis of the title is Hukumnana executed on 7^th January 1950 by the ex- landlord and the rent receipts issued by the landlord.

What were the Court’s Observations?

• The Court noted that the plaintiff claim title on the basis of settlement in 1950 by the ex-landlord followed by possession. The defendant however claim title on the basis of sale deed executed by Suleman Christan and Abhiram Oraon.
• The High Court held that the trial Court was right in not accepting the Hukamnama as a document of title.
• The Court held that mere age of the document is not a conclusive proof of it’s due execution.
• For raising a rebuttable presumption under Section 90 of Indian Evidence Act, 1872 (IEA) at least prima facie proof is required to show that the document is thirty years old.
• The Court further noted that the provision uses the expression “may presume” and hence it is the discretion of the Court to raise or not raise a presumption.

What are the Essentials of Section 92 of Bharatiya Sakshya Adhiniyam, 2023 (BSA)?

• Section 92 of BSA provides for presumption as to documents that are thirty years old. This provision was earlier found under Section 90 of IEA.
• Section 92 provides:
  • Any document proved or purporting to be thirty years old
  • Produced from any custody the Court considers in a particular case to be proper
  • The Court may presume
    • That the signature or handwriting is of the person of whom it purports to be
    • In case the document is executed or attested that it was duly attested and executed by the persons by whom it purports to be executed and attested.
• It is to be noted that the provision uses the phrase “may presume”.
  • “may presume” is found in Section 2(h) of BSA.
  • Section 2(h) provides that whenever it is provided by this Adhiniyam that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it;

Comparison Between Section 90 of IEA and Section 92 of BSA?

• Changes in Section 92 of BSA:
  • Prima facie, it looks like the Explanation to Section 90 of IEA does not find place in Section 92 of BSA. However, the explanation to Section 92 of BSA provides that the explanation to Section 80 of BSA applies to this Section as well.
  • Explanation to Section 80 of BSA states: “For the purposes of this section and section 92, document is said to be in proper custody if it is in the place in which, and looked after by the person with whom such document is required to be kept; 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 that origin probable.”
  • The above would hence be useful while interpreting Section 92 of BSA.

What are the Case Laws on Section 90 of IEA (Section 92 of BSA)?

• Sri Lakni Baruan And Others v. Sri Padma Kanta Kalita & Othrs. (1996)
  • The Court in this case held that this Section is based on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of a document that is 30 years old.
  • Section 90 of IEA does away with the strict rule of proof of private documents.
  • It is to be noted that if the document produced from the proper custody is a copy admitted under Section 65 as secondary evidence and it was thirty years old the signature authenticating the copy might be proved to be genuine. But this would not be sufficient to justify the presumption of due execution of original under Section 90.
  • Thus, the position is clear that presumption under Section 90 of IEA does not apply to a copy or certified copy even though thirty years old.
  • Lastly, the Court also held that it is the discretion of the Court to raise or not to raise the presumption under Section 90 of IEA.
• Ashutosh Samanta (d) By LR’s & Ors v. SM. Ranjan Bala Dasi & Ors. (2023)
  • The issue before the Court was whether Section 90 of IEA would be applicable in case of wills.
  • The Supreme Court in this case cited the judgment of Bharpur Singh v. Shamsher Singh (2009) wherein it was held that presumption regarding documents 30 years old does not apply to a will.
  • The Court hence held in this case that wills cannot be proved only on the basis of their age rather it has to be proved in terms of Section 63 (c) of the Succession Act, 1925 and Section 68 of IEA.