The main legal point established is that the presumption under Section 90 of the Indian Evidence Act, 1872, does not apply to copies or certified copies of old documents, and evidence is required to prove the age of the document.

RAVINDRA V. GHUGE, J.

1. The petitioners/plaintiffs are aggrieved by the order dated 06/08/2016 passed by the Trial Court, by which, the Trial Court has rejected their application Exh.133 in RCS No.716/2011, and has refused to refer a purported 30 years old document to a forensic laboratory to test the age of the ink.

2. This matter was heard extensively on 25/02/2019 and again today.

3. Issue is that a document dated 30/06/1984, said to be a 'hibanama kee-yadaasht', is produced by defendant No.4 along with his affidavit in lieu of examination in chief. This document is believed by defendant No.4 to be more than 30 years old. The petitioners/ plaintiffs brand the said document as being forged and fabricated. The said document was exhibited by the Trial Court by an order dated 20/07/2016 passed below Exh.124 on the basis of the presumption available u/s 90 of the Indian Evidence Act, 1872, keeping in view that it was referred to in the written statement of the said defendant and the original was produced.

4. After hearing this matter on 25/02/2019, I brought it to the notice of the plaintiffs that the onus and burden of proving the document would rest on the shoulders of defendant No.4, who has relied upon the said document and has referred to that document in his written statement. Learned Advocate for the plaintiffs requested for an adjournment and hence the matter was posted today. In the course of his submissions today, he points out that he would not have pursued this litigation, but for the fact that the Trial Court has already based the exhibiting of the said document on Section 90. He, therefore, submits that his task is rendered difficult as the Trial Court has already drawn a presumption.

5. The learned Advocates appearing on behalf of respondent No.1 and 4 to 10 have strenuously opposed this petition on the ground that, if Exhibit 133 is a vague and ambiguous application, filed without ascertaining as to whether any facility with any forensic lab is available in India to test the age of the ink appearing on the document, the said application ought not to be entertained and has been rightly rejected.

6. Despite the vehement submissions of the said Advocates, I find that, firstly, Section 90 does not contemplate a presumption to be drawn mechanically that a document is 30 years old and therefore the handwriting, contents and the signatures appearing on the document, be deemed to be proved.

7. Section 90 reads 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."

8. In my view, if a document, said to be 30 years old, is produced before the Court, it has to be proved to be of that age. The litigant who produces such a document, would have to lead evidence to firstly prove that the document is 30 years old. Secondly, granting of an exhibit number to a document would not lead to a presumption that the contents of the document have been proved.

9. In Lakhi Baruah and others Vs. Padma Kanta Kalita and others, (1996) 8 SCC 357, the Hon'ble Supreme Court has concluded that a presumption as regards the age of a document u/s 90 would not apply to a copy or a certified copy, even though 30 years old. If the foundation is laid for the admission of secondary evidence u/s 63 of the Evidence Act, 1872, by proof of loss or destruction of the original and the copy which is 30 years old is produced from proper custody, then only the signature authenticating the copy may, under Section 90, be presumed to be genuine. It is the discretion of the Court to