Indian Evidence Act

Introduction

Section 90 of the Indian Evidence Act, 1872 (IEA) is founded on necessity and convenience because it is extremely difficult and sometimes impossible to lead evidence to prove handwriting, signature or execution of old documents after a lapse of 30 years. The documents, which are 30 years old, prove themselves.

Section 90 of IEA

• This Section deals with the presumption as to documents thirty years old.
• It states that 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 to this section states that 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.
• Illustration:
  • A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

Essential Elements of Section 90 of IEA

• The basis of this section is that as time passes, the executants, vendors, witnesses may not be available to prove title etc.
• The principle underlying Section 90 is that if a document, 30 years old or more, is produced from proper custody and is on its face, free from suspicion, the court may presume that it has been duly executed and attested.
• The power under this Section is only discretionary and not mandatory.
• This section nowhere provides that authenticity of the recitals contained in the document is to be presumed.

Conditions for Section 90 of IEA

• The conditions on which the execution may be presumed are:
  • It must have been in existence for 30 years or more.
  • It must be produced in Court from proper custody.
  • The document must be in appearance free from suspicion.

Case Law

• In the case of Ashutosh Samanta Versus Ranjan Bala Dasi & Ors. (2021), the Supreme Court presumption under Section 90 of the IEA regarding the genuineness of documents aged more than thirty years old is not applicable to a will.