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1969 Supreme(AP) 137
Andhra Pradesh High Court
Judges : K.MADHAVA REDDY
Kosaraju Ramaiah Chowdary - Appellant
Versus
Sunkara Veerabhadraiah - Respondent
Decided On : 10-14-69
The presumption of due execution under Section 90 of the Evidence Act cannot be raised in the absence of the executant's signature or thumb impression, even if the document is registered.
Headnote:
EVIDENCE ACT, 1872 - SECTION 90 - REGISTRATION ACT - PRESUMPTION OF DUE EXECUTION - REGISTERED SALE DEED - ADMISSIBILITY IN EVIDENCE - EXECUTION BY UNAUTHORIZED PERSON - NO PRESUMPTION UNDER SECTION 90.
Fact of the Case:
Two registered sale deeds from 1895 and 1197 were rejected as inadmissible in evidence by the District Munsiff due to the absence of the executant's signature or thumb impression. The petitioner challenged this decision, arguing that the documents were admissible and that presumptions of due execution could be raised under Section 90 of the Evidence Act and the fact of registration.
Finding of the Court:
The court held that the documents were admissible in evidence, but that the presumption of due execution under Section 90 of the Evidence Act could not be raised because the executant was illiterate and did not sign or affix his thumb impression to the documents. The court also held that the registration of the documents did not prove their due execution, but was merely an admission of execution by the executant.
Issues: 1. Whether the registered sale deeds were admissible in evidence without the executant's signature or thumb impression? 2. Whether the presumption of due execution under Section 90 of the Evidence Act could be raised in the absence of the executant's signature or thumb impression? 3. Whether the registration of the documents proved their due execution?
Ratio Decidendi: 1. The court held that the documents were admissible in evidence because they were registered sale deeds and were not barred by any provision of law. 2. The court held that the presumption of due execution under Section 90 of the Evidence Act could not be raised because the executant was illiterate and did not sign or affix his thumb impression to the documents. The court noted that Section 90 only allows for the presumption of due execution when the document purports to be executed by the person against whom the presumption is sought to be raised. 3. The court held that the registration of the documents did not prove their due execution, but was merely an admission of execution by the executant.
Final Decision: The court set aside the order of the District Munsiff and directed the lower court to admit the documents in evidence and consider the question of raising the presumption under Section 90 of the Evidence Act after taking all facts and circumstances into consideration.
( 1 ) THIS Civil Revision Petition is directed against the order of the District Munsif. Repalle rejecting two registered sale deeds dated 1895 and 1197 as it admissible in evidence on the ground that they do not bear the thumb impression or the signature of the executant. By the same order the District Munsiff held the document cated 1908 admissible in evidence as it bears the thumb impression of the person who is stated to have executed thedocumentiln this revision petition it is contended that even those two documents are admissible in evidence. While the arguments seemed to have been addressed as are now addressed before ne, as regards the presumption to be raised under Section 90 of the Evidence Act in respect of those documents which are admittedly over 30 years old and as regards the presumption arising out of the registration of those documents, the Additional District Munsiff proceeded to hold these documents inadmissible on the ground that they do not bear either the signature or the thumb-impression of the so called executant. Whether the document is admissible in evidence or not is one thing and whether the presumption under Section 90 of the Evidence Act and of a particular document is totally different. These two documents are, registered sale-deeds in respect of immovable property and are clearly admissible in evidence. Whether a presumption as to due execution could be raised or not in view of the documents being ancient and if such presumption cannot be drawn for any reason whether the execution of those documents could be proved by other evidence or not and even the question whether the document could at all be said to have been execated is a matter that arises after these documents are admitted in evidence. The admission of the document does not lead to the conclusion that they are at all executed either on the basis of presumption or one the basis of positive proof let in by the person who according to the plaintiff has executed those.
( 2 ) THE order of the trial court in as much as it holds that these two documents are inadmissible in evidence, deserves to be set aside. However, inasmuch as the trial Court seems to have considered the question whether a presumption could be raised under Section 90 of the Evidence Act in respect of registered documents which do not bear either the signature of the executant or his thumb impression, in order to obviate further controversy over the matter, I proceed to consider that question. Under Section 90 of the Evidence Act, where a document purports to be or proved to thirty years old and is produced from proper custody, the court may presume that the signature and every other part of the document which purports to be in the hand writing of any particular person is in that person s handwriting in the case of a document executed or attested in tbose circumstances, the court may presume that it was duly executed and attested by every person by whom it purports to be executed and attested. For the application of this section, firstly the document must be thirty years old, secondly it must be produced from proper custody and thirdly this document must be purported to be in the handwriting of any particular person or it must be purported to be executed or attested by certain personsi Then the necessary presumption mentioned above may be drawn. Here in the instant case, the executant admittedly is an illiterate person and was not capable of putting his signature. His name is written on the document at the place where usually the signature of the executant appears; His name is written along with the words "nisani", It is not the case of any of the parties that either the name or the word nisani" were written by the executant himself, for hs was an illiterate person In view of section 90 of the Act before any presumption could be drawn, the document must first be purported to have been executed and it is not the case of any of the parties here that the
