Punjab-Haryana High Court Surinder Singh vs Santokh Singh & Ors on 14 October, 2014 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. RSA NO.5331 OF 2014 (O&M) Date of decision : 14.10.2014 Surinder Singh … Appellant Versus Santokh Singh and others …Respondents CORAM : HON’BLE MR.JUSTICE RAJ MOHAN SINGH As against this, learned counsel for the respondent has argued that the Will dated 23.11.1962 (Exhibit P-2) being a 30 years old when the certified copy of the same in the form of secondary evidence was tendered in evidence. The secondary evidence was allowed by the court. The attesting witnesses of the Will in question, need not to be examined as both the witnesses have since died, and accordingly, permission was taken to lead secondary evidence relating to Will from the Court and the learned counsel for the defendants did not raise any objection in respect thereof. Therefore, certified copy of the Will is fully permissible and lawful to draw presumption under Section 90 of the Indian Evidence Act and Will is per se admissible in law. Learned counsel cites 2011(1) CCC 497 titled as PD Navghare and another Vs. S.D.Chachad and others, to submits that Will is 30 years old, and is admissible under Section 90 of the Evidence Act because the same is being produced from the proper custody, and is free from suspicion. Central Government Act Section 90 in The Indian Evidence Act, 1872 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. Explanation.—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. This Explanation applies also to section 81. Illustrations (a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper. (b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper. (c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper. STATE AMENDMENTS Uttar Pradesh.—(a) Renumber section 90 as sub-section (1) thereof; (b) in sub-section (1) as so renumbered, for the words “thirty years”, substitute the words “twenty years”; (c) after sub-section (1) as so renumbered, insert the following sub-section, namely:— “(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, 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, it is that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested”. (d) After section 90, insert the following section, namely:— “90A. (1) Where any registered document or a duly certified copy thereof or any certified copy of a document which is part of the record of a Court of Justice, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed. (2) This presumption shall not be made in respect of any document which is the basis of a suit or of defence or is relied upon in the plaint or written statement.” The Explanation to sub-section (1) of section 90 will also apply to this section; [Vide Uttar Pradesh Act 24 of 1954, sec. 2 and Sch. (w.e.f. 30-11-1954).] COMMENTS Presumption Assuming that the document is more than thirty years old and comes from proper custody, there would be no presumption that contents of the same are true; Mohinuddin v. President, Municipal Committee, Khargone, AIR 1993 MP 5.
