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2010 Supreme(Mad) 498
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
Shanmugam
Versus
lumalai Gounder & Others
Second Appeal No.722 of 2003
Decided On :Decided on : 05-02-2010
For the Appellant:N. Mala, Advocate.
For the Respondents:R1, R3, V. Raghavachari, Advocate.
Ratios:
a. Marking of document by a party would not raise any presumption in his favour as to its execution or the truth or otherwise of the contents and the party has to prove it.
b. To raise the presumption of due execution of any ancient document under Sec.90 of the Indian Evidence Act, 1872, the original document itself has to produced and production of its copy would not be enough.
Headnote:(A)Indian Evidence Act, 1872(1 of 1872)-Sec.90-Document-Ancient document-Presumption-Genuineness-Contents-Execution-Proof-Plaintiff had purchased the suit property from the previous owners who had bought by partition and also sale-But there was a mistake in survey number-When the defendants attempted to interfere in the possession of the plaintiff, the plaintiff filed suit praying relief of injunction-Defendant contended that the suit properties were already sold by the previous owners and the plaintiff did not get title and to support their stand, they marked 30 years old document-Trial court decreed the suit in favour of the plaintiff which was confirmed in appeal-Defendant appealed against the decree and the parties stood by their stands-Held, mere marking of document aged 30 years old did not raise presumption as to its due execution and correctness of the contents-Contents and execution of the documents were not proved by the defendants-Appeal dismissed.
(B)Indian Evidence Act, 1872(1 of 1872)-Sec.90-Document-Marking-Presumption-Genuineness-Contents-Execution-Proof- Marking of document by a party would not raise any presumption in his favour as to its execution or the truth or otherwise of the contents and the party has to prove it.
The consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise of the contents. The mere marking of a document does not dispense with the proof of the said documents. The admissibility of a document into evidence and proof of genuineness of such document are different issues. Para 16
(C)Indian Evidence Act, 1872(1 of 1872)-Sec.90-Document-Ancient document-Presumption-Genuineness-Contents-Execution-Proof-To raise the presumption of due execution of any ancient document under Sec.90 of the Indian Evidence Act, 1872, the original document itself has to produced and production of its copy would not be enough.
With regard to the contention of ancient documents, the language of section 90 of Indian Evidence Act clearly indicates that the production of the particular document may be necessary for applying statutory presumption. If the document produced was a copy admitted under section 65 as secondary evidence and it was produced from proper custody and was over 30 years old, then the signature authenticating the copy might be presumed to be genuine but the production of the copy was not sufficient to justify the presumption of due execution of the original under section 90.
Para 18
The above Second Appeal arises against the judgment and decree in A.S.No.73 of 1994 on the file of Additional Sub Court, Tindivanam confirming the Judgment and Decree in O.S.No.140 of 1988 on the file of District Munsif Court, Tindivanam
2. The first defendant in the suit is the appellant in the above second appeal. The plaintiff is the first respondent and defendants 2 to 4 are the respondents 2 to 4 in the above second appeal.
3. The plaintiff filed the suit in O.S.No.140 of 1988 on the file of District Munsif Court, Tindivanam for declaration and injunction.
4. The brief case of the plaintiff in the suit is as follows:-(i) According to the plaintiff, the suit property measuring an extent of 80 cents in S.NO.278/8 originally belonged to Kuppa Gounder and Arumuga Gounder sons of Ayyadurai Gounder and they were enjoying the property in common and about 40 years ago, they partitioned the property. The said Kuppa Gounder did not have male issue. He had three daughters namely, Lakhmigantham, Saroja and Sarasu. The said Kuppa Gounder was allotted 44 cents in S.No.278/8 out of the total extent of 80 cents. The said Kuppa Gounder,sold an extent 0.30 cents, out of 44 cents, to his son-in-law, Venni Gounder (husband of Saroja) on 21.9.1968. On the same day, he also settled the remaining extent of 0.14 cents in S.No.278/8 to his daughter Saroja. Further, in the said two documents, the survey numbers were mentioned wrongly as 278/7. However, the boundaries were mentioned correctly in the said two documents. Venni Gounder and Saroja were enjoying the lands as per the boundaries mentioned in the two documents. Venni Gounder and Saroja are the defendants 2 and 3 in the suit. On 17.8.1970, defendants 2 and 3 sold their lands measuring an extent of 44 cents to the plaintiff. The plaintiff obtained patta in respect of the property purchased on 17.8.1970. The plaintiff purchased the property as a bonafide purchaser from the defendants 2 and 3 with the survey number mentioned wrongly as survey No.278/7. (ii) According to the plaintiff, subsequent to the sale of the land to the plaintiffs, the defendants 2 and 3 joined hands with the first defendant and tried to interfere with the possession and enjoyment of the plaintiffs property. The fourth defendant is the owner of Survey No.278/7. The first defendants father Arumuga Gounder died 20 years ago, Kuppa Gounder died 15 years ago and his wife died about 10 years ago. Since the defendants tried to interfere with the possession and enjoyment of the plaintiffs property, the plaintiff filed the suit.
5. The brief case of the first defendant is as follows: (i) According to the first defendant, though the land measuring an extent of 80 cents in Survey No.278/8 originally belonged to Ayyadurai Gounder, it was not enjoyed in common by Kuppa Gounder and Arumuga Gounder. The first defendant denied the partition between the said Kuppa Gounder and Arumuga Gounder 40 years ago. On 28.2.1931, Kuppa Gounder son of Ayyadurai Gounder and his wife Rajambal, sold an extent of 50 cents in the said 80 cents to one Ratnasabapathy Udayar and the remaining 0.30 cents belonged to Arumuga Gounder. After the sale of 50 cents on the northern side, Kuppsamy Gounder and Rajambal did not have any right over the said land in Survey NO.278/8. (ii) According to the first defendant, the predecessor Ratnasabapathy sold the land to another Kuppusamy son of Narayanasamy. The said Kuppusamys wife is the Ayyadurai Gounders daughter. Though the said Kuppusamy belongs to Vanniar Community, he used to write his name as Kuppusamy Naidu. The said Kuppusamy Naidu is the son-in-law of Ayyadurai Gounder. The said Kuppusamy Naidu is staying in Malaysia along with his son and grand-childen. Therefore, after the sale of 50 cents by Kuppusamy Goudner to Ratnasabapathy Udayar, the above referred Kuppusamy Naidu did not possess any land. (iii) According to the first defendant, the sale deed dated 21.9.1968 is not true and genuine. Therefo
