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.
(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 Â for safe custody. The custody is proper.
When a document which was duly executed and attested by witnesses is produced before the court after thirty years, it will cause great hardship to prove the document. It is very difficult to prove handwriting, signature or execution of ancient documents after the lapse of so many years. In order to do away with these difficulties of proving documents Section 90 has laid down some principles founded “on necessity and convenience.”
A document of thirty years old is presumed to be genuine. According to Section 90 when a document is or purports to be thirty years old produced in a court from a proper custody which the court considers to be proper, the court may presume that—(i) 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 (ii) that it was duly executed and attested by the person by whom it purports to be executed and attested. The presumption enshrined in this section is the discretion of the court. It may presume that a thirty years old document is genuine. Presumption can be raised at any stage including appellate stage.
The principle on which this rule of presumption is based is stated by Taylor in the following words:
“Such documents furnish the only attainable evidence of ancient possession. The law, therefore, on the principle of necessity, allows them to be read by courts of justice. It may be said that forgery and fraud may be at work to abuse the rule. But forgery and fraud, are comparatively speaking of rare occurrence and a fabricated deed generally affords internal evidence of its real character.”
The section lays down two essential conditions on which execution of a document may be presumed. These are:
(1) The document must be thirty years old, and
(2) It must be produced in the court from proper custody.
Thirty years old:
A document is purporting or proved to be thirty years old. Genuineness of a document can be presumed when it is 30 years old and produced in the court from the proper custody. How can it be proved that it is thirty years old? The date of execution shown on the face of the document is prima facie evidence of its age. If no date is given in the document, “it can be proved by extraneous evidence” that it is thirty years old. If there are circumstances in the case which show great doubt on the genuineness of a document more than thirty years old, even if it is produced from proper custody, the court may exercise its discretion by not admitting that document in evidence without formal proof.
Where a document was not thirty years old when filed in the court but becomes so by the time that is considered by the court as part of the evidence, the presumption will apply. Presumption can be raised at any stage including appellate stage. However related claim of presumption would not by itself confer any right on other party to claim opportunity to lead evidence in rebuttal. A document of thirty years old produced from private custody, though natural, was not permitted to be used to deny the paternity of a child. The gazatte notification issued thirty two years prior to the suit was produced and marked in evidence and no circumstance proved justified an inference that it might not have been published as enjoined by law, the regularity of issue of such a notification was presumed.
The second condition is that the document must emanate from proper custody. According to the explanation attached to this section ‘proper custody’ means “a place where the document might reasonably be expected to be found”.
The court must examine the surrounding circumstances tending to establish the connection of the party producing the document with the person with whom the document should naturally have been. If a document, howsoever, old it may be, not produced from a proper custody, no presumption could be drawn under section 90. Where a compromise filed in a court was produced after thirty years, the custody of the court was held to be proper.
Thus the document presumed to be thirty years old must be produced from proper custody. Where the letters written by the deceased to third person and it did not explain how the letters came in his custody, it was held that the letters were not produced from proper custody, the presumption under section 90 was not available. Where a document in question described a disputed property of a joint family property, it bore the signatures of the preceding owners, looked ex facie to be all right and not suspicious, and was produced from the custody of one of the sons, one of the executants, that custody was held to be a proper custody. The document in question which is more than thirty years old was produced from the custody of one of the beneficiaries who paid half of the sale consideration regarding property, the custody was held to be proper.
Presumption as to signature:
The true contents of a document have to be proved and the presumption is permitted when a document of thirty years old is produced. The court may presume that the signature and every other part of document which purports to be in the handwriting of any particular person, is that person’s handwriting. In case of execution and attestation it has to be proved that it was duly executed and attested by person by whom it purports to be executed or attested. Where there is no signature there is no presumption.
Presumption about Will and Gift:
Presumption under this section is also extended to the instrument of wills. When a party claiming benefits of will he is required to prove that the testator at the time of execution of will was in sound mind and that it was duly attested by witnesses. The will purporting to be thirty years old have to be produced from proper custody. The period of thirty years will run from the date of the will and not from the death of the testator. No pleading in written statement to the defendant propounders was made that it was last Will of the testator, their father. Presumption under section 90 is not available as it executed all female heirs and the widow of the testator.
If the gift deed of more than thirty years old was produced from proper custody, it would be presumed to be duly executed.
No presumption on certified copy:
The presumption under this section does not apply to certified copy if the original document is not produced before the court. Because it is secondary evidence. It was held by the Privy Council that when a thirty years old copy of the original document is produced, the genuineness of the original cannot be presumed. The Supreme Court also approved the views of the Privy Council.
90A. Presumption as to electronic records of five years old:
Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorized by him in this behalf.
Electronic records 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 naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.
This Explanation applies also to Section 81A.
Where an electronic record purports to be or is proved to be five years old and is produced from the proper custody, the court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorized by him in this behalf. Presumption if available under section 90, can therefore be raised by the court even after holding that the presumption is not available under section 90A of the Act.