Section 90 Evidence Act: Presumption for Ancient Documents

The Presumption as to Ancient Documents: A Careful Study of Section 90 and Its Limits

Setting the Stage: A Problem Worth Examining

The two problems posed here are connected by a common thread — the presumption that the law raises in favour of documents that have aged beyond a certain threshold. But as we shall see, this presumption is not a blanket exoneration of the party who produces an old document. It comes with precise conditions, known limits, and crucial distinctions that must be carefully understood. Let us take each problem in turn.

Problem I: A's Certified Copy of the 1934 Sale-Deed

The Facts: A obtained a certified copy of a sale-deed dated 3rd January 1934 from the office of the Sub-Registrar. The original sale-deed had been lost. A produced the certified copy before a court on 5th July 1976 and urged two contentions: first, that the certified copy is admissible in evidence; second, that in view of Section 90 of the Evidence Act, the execution of the sale-deed stands proved. Let us examine each contention separately.

Contention I: Is the Certified Copy Admissible?

This contention is well-founded and must succeed. The sale-deed, being a private document, was registered with the Sub-Registrar and its contents entered into Book-I. As was established by the Gujarat High Court in Jagdishchandra Chandulal Shah v. State of Gujarat (1989 Cr LJ 1724 Guj) and reaffirmed by the Supreme Court in State of Haryana v. Ram Singh (AIR 2001 SC 2532), while the sale-deed in its original form remains a private document, the public record of it maintained by the Registering Officer is a public document within the meaning of Section 74 of the Indian Evidence Act (now Section 74(1)(b) of the Bharatiya Sakshya Adhiniyam, 2023). The certified copy issued from the Sub-Registrar's office is, therefore, the secondary evidence of a public document — a species of evidence that is expressly permitted under Section 65(e) of the Evidence Act (Section 60(e) of the BSA, 2023).

Moreover, even independent of that, Section 65(c) of the Evidence Act permits secondary evidence when the original has been destroyed or lost. A states that the original has been lost. That is a recognized ground for adducing secondary evidence. And when the original is a public document, the only permissible form of secondary evidence is a certified copy — precisely what A has produced. Section 77 of the Evidence Act (Section 76 of the BSA) declares that certified copies may be produced in proof of the contents of public documents. The court is also directed by Section 79 of the Evidence Act (Section 78 of the BSA) to shall presume the genuineness of such certified copy duly issued by the Sub-Registrar, an officer of the State Government. A's first contention, therefore, succeeds. The certified copy is admissible.

Contention II: Does Section 90 Help Prove Execution?

This is where the law draws a very sharp and well-settled line, and A's second contention must fail. Section 90 of the Evidence Act (Section 92 of the BSA, 2023) reads as follows:

"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."

The section appears, on first reading, to support A's contention. The sale-deed is dated 3rd January 1934. It was produced before the Court on 5th July 1976. Between those two dates, more than 42 years had elapsed, which is well beyond the thirty-year threshold. But here is the critical caveat that the law insists upon with absolute firmness: Section 90 applies only to the original document, not to a certified copy.

This principle is settled beyond all controversy. The Privy Council laid it down with precision in Seethayya v. Subramanya Somayajulu (1929 56 IA 146) and it was followed by the Supreme Court in Sital Das v. Sant Ram (AIR 1954 SC 606), Harihar Prasad Singh v. Deonarain Prasad (AIR 1956 SC 305), and Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju (AIR 1968 SC 947). The position was stated with complete clarity: the section requires the production before the court of the particular document in regard to which the court may make the statutory presumption. A certified copy is not that document. If a certified copy is admitted as secondary evidence and is itself more than thirty years old, the court may presume that the signature of the certifying officer is genuine — but that is all. The presumption of the due execution and attestation of the original sale-deed cannot be raised merely on the production of a copy, howsoever old.

The Privy Council in Basant Singh v. Kunwar Brij Raj Saran Singh (1935 62 IA 180) put it in unambiguous terms: the production which entitles the court to draw the presumption as to execution and attestation is of the original, not its copy. The certified copy obtained from the Sub-Registrar is secondary evidence of the public record — it proves the contents of the original, but it does not invoke the presumption of execution under Section 90. As the Allahabad, Bombay, and Orissa High Courts have consistently held, and as the Privy Council itself affirmed, the presumption of genuineness does not apply to a copy or a certified copy unless foundation is laid and, even then, the presumption operates only against the authenticating signature of the certifying official and not against the original executant's signature.

The result, therefore, is as follows: A's certified copy is admissible in evidence — it proves the contents of the original sale-deed. But the execution of the sale-deed is not proved by virtue of Section 90 alone. A will have to resort to other means to prove execution — such as by examining surviving attesting witnesses, by comparison of signatures under Section 73, by proving handwriting under Section 47, or by calling the Sub-Registrar who was present at the time of registration under the proviso to Section 68 of the Evidence Act.

Problem II: The 28-Year-Old Document Exhibited After Three Years

The Facts: A plaintiff files a 28-year-old document in a suit. The document is exhibited in evidence three years later, when it would be 31 years old.

This problem raises a deceptively simple question, but the answer requires careful attention to when the thirty-year period is to be reckoned. Section 90 says "purporting or proved to be thirty years old." The critical question is: thirty years old as of which date?

The law on this point was conclusively settled by the Privy Council in Surendra Krishna Roy v. Mirza Mahammad Syed Ali Matwali (1935 63 IA 85, 1936 38 Bom LR 330), where Their Lordships held that under Section 90 of the Evidence Act, the period of thirty years is to be reckoned not from the date upon which the deed is filed in Court, but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the subject of proof. This was also the decision in the early Calcutta case of Minu Sirkar v. Rhedoy Nath Roy (1879 5 CLR 135) and has been consistently followed since.

In the present problem, the document was 28 years old when filed in court but is 31 years old when it is exhibited in evidence — that is, when its genuineness becomes the subject of proof. Thirty years old it certainly is at the time of tendering in evidence. The presumption under Section 90, being reckoned from the date of tendering, is therefore available to such a document. This was also confirmed by the Supreme Court in Om Prakash v. Shanti Devi (2015 4 SCC 601), where a gift deed filed five months before it became thirty years old was disallowed from invoking the presumption. The contrast makes the rule clear: a document must be thirty years old not when filed, but when tendered in evidence.

The Conditions That Must Still Be Satisfied

Availability of the presumption in principle does not mean its automatic application. The court must still be satisfied as to two conditions before it may raise the presumption.

First, the document must be produced from proper custody. The Explanation to Section 90 defines proper custody as follows: documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be. 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 such an origin probable. Thus, a plaintiff who produces a deed relating to land of which he claims title, from his own possession, satisfies the requirement of proper custody. This is precisely Illustration (a) to Section 90, where A has been in possession of landed property for a long time and produces from his custody deeds relating to the land showing his title. The custody is proper. Under the BSA, 2023, the same provision is carried forward as Section 92, and the Explanation on proper custody is now to be found in the Explanation to Section 80 of the BSA, made applicable to Section 92 by express reference.

Second, the document must not appear ex facie suspicious. The Supreme Court, speaking through a bench that examined the section in detail in Om Prakash v. Shanti Devi (AIR 2015 SC 976), emphasized that even if the document is proved to be thirty years old, the person seeking to rely on Section 90 would not axiomatically receive a favourable presumption. The section says "may presume" — not "shall presume." The difference is fundamental. "Shall presume" is mandatory; "may presume" is discretionary. The court must look at the surrounding circumstances, both external and internal to the document. If there are grounds for suspicion — such as inconsistencies in the document, suspicious circumstances about its production, or an inability to explain how the document came to the custody of the party producing it — the court may decline to raise the presumption entirely.

What the Presumption Does and Does Not Do

Assuming the conditions are met and the court elects to raise the presumption, it is essential to understand precisely the scope of what is presumed. As the Supreme Court in Union of India v. Ibrahim Uddin (2012 8 SCC 148) and in State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) made clear, the presumption under Section 90 operates only in respect of:

The signature and every other part of the document purporting to be in the handwriting of any particular person — presumed to be in that person's handwriting.
In the case of a document executed or attested — presumed to have been duly executed and attested by the persons by whom it purports to have been so done.

The presumption does not extend to:

The truth of the contents of the document.
The authority or title of the executant to execute the document.
The legal effect that the document purports to have.
The fact that the document had been acted upon.

As the Calcutta High Court stated in Khetra Mohan v. Bhairab Chandra (AIR 1972 Cal 229), Section 90 nowhere provides that the authenticity of the recitals contained in any document is presumed to be correct. If A's document is a sale-deed, the presumption tells the court that it was executed and signed by the person named therein — but whether the transaction was lawfully completed, whether consideration was actually paid, whether the property described was accurately identified — all these must be proved by independent evidence.

A Note on the BSA, 2023

Section 92 of the Bharatiya Sakshya Adhiniyam, 2023 corresponds to Section 90 of the Indian Evidence Act, 1872, with two minor changes. The Explanation defining proper custody is no longer reproduced in the section itself; instead, it now states that the Explanation to Section 80 of the BSA shall apply to Section 92. The word "is" in the Illustrations has been replaced with "shall be." The substantive law — the conditions, the scope of the presumption, and its discretionary character — remains unchanged. Courts deciding matters under the BSA will follow the same rich body of precedent that has developed under Section 90 over the past century and a half.

Conclusion of Both Problems

To summarize the legal position with precision: In Problem I, A's certified copy is admissible as secondary evidence of the public record, and Section 79 raises a presumption as to its genuineness. But Section 90 offers no assistance to prove the execution of the original sale-deed, because that section applies to original documents and not to copies. In Problem II, the presumption under Section 90 is available to the plaintiff's 28-year-old document when it is tendered in evidence three years later — since the thirty-year threshold is calculated from the date of tendering and not from the date of filing. But the court retains the discretion to refuse the presumption if the document appears suspicious, and even if raised, the presumption speaks only to the execution and attestation, not to the truth of the contents of the document.