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1996(2) SUPREME 734
SUPREME COURT OF INDIA
G.N. Ray and B.L. Hansaria, JJ.
Lakhi Baruah and Ors. -Appellants
versus
Padma Kanta Kalita & Ors.-Respondents
Civil Appeal No. 3866 of 1996
(Arising out of SLP (C) No. 6386/84)
Decided on 26-2-1996
Held : Section 90 of the Evidence Act is founded or necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or impropabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if 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 uner Section 90 should not be exercised arbitrarily and not being informed by reasons. (Para 14)
The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts is that presumption under Section 90 does not apply to a copy or a certify copy even though thirty 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 destruction 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. (Para 16)
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 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 hav been contested by the parties. (Para 17)
JUDGMENT
G.N. Ray, J.-Leave granted. Heard learned counsel for the parties.
2. This appeal is directed against judgment dated December 17, 1993 passed by the High Court of Guwahati in Second Appeal No. 46 of 1993. By the aforesaid judgment, the High Court dismissed the appeal preferred against judgment and decree dated March 29, 1993 passed by the 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 Munsif. IInd Court. Tezpur passed in Title Suit No. 55 of 1981.
3. Shri Pushpa Kanta kalita and Shri Ragma Kanta Kalita, namely plaintiff Nos. 1 and 2. Instituted Title Suit No. 55 of 1961 in the Court of learned Munsif at Tazpur against defendants Smt. Alkon Baruan, Shri Dakshi Baruan, Shri Jiban Baruan and Smt. Sonmal Baruan for a declaration that the plaintiff No. 1 was the sole and lawful owner of the lands in Schedule A to the plaint and for further declaration that the registered Sale Deed of 1950 of Tezpur was forged null and void and was inggerative 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 plaint 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 ofthe suit property to the plaintiff No. 2 after evicting the defendants from the said lands was also made.
4. The case of the plaintiff inter alia was that one Sumitra Kalitani was the sole absolute owner of lands measuring about 7 bignas 3 kathas 12 lachas comprised under Old Dag Nos. 624, 790, 780, 796, 788, 816. 818 and 986 appertaining to Old ... Patta No. 239 of village Dekasunder, Mouza .... 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 Sumitra on March 14, 1979 in the said village Dekasunder but the said Sumitra Kalitani died within about two three months from the date of birth of Pushpa Kanta. Father of Pushpa Kanta, Thalluk, also died after about four years and the plaintiff No. 1 Pushpa Kanta was thereafter brought up and maintained by his grandmother (mother a mother). Late Japari Kalitani, in the said ancestral house upto the age of 8 and 9 years of the plaintiff No. 1. Thereafter, the said Japari Kalitani also died and plaintiff No. 1 became an orphan and there was no one to look after him and his 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 Baruan, since deceased and husband of respondent No.1. started torturing the plaintiff No. 1 with mala fide intention of wrongfully grapping the properties of plaintiff No.1. As a matter of fact, on one occasion the plaintiff No.1 was mercilessly death by the said Holiram Baruan 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 paternal uncle Shri Kaminath Bora had brought the plaintiff No.1 to the residence of Kaminath at village Madhab, Borhampur in order to ensure security of plaintiff No. 1. The plaintiff No. 1 remained there till he had attained majority and also for some more years. Thereafter, he acquired some lands at village Hatinga Rampur an 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 Dekasunder were used to be looked after by Smt. Japari Kalitani his maternal grandmother till her death and thereafter by the uncle of plaintiff No.1. Kaminath Bora till plaintiff attained majority. The plaintiff No.1 after attaining majority had been managing and enjoying the entire property at Dekasunder by exercising actual physical cont
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