OM PRAKASH (DEAD) TH. HIS LRS.versusSHANTI DEVI & ORS.

                    [2015] 1 S.C.R. 277

           OM PRAKASH (DEAD) TH. HIS LRS.                       A
                              V.
                   SHANTI DEVI & ORS.
               (Civil Appeal No. 20 of 2015)
                    JANUARY 05, 2015
                                                                B
            [ANIL R. DAVE, M.Y. EQBAL AND
                 VIKRAMAJIT SEN, JJ.]

      Evidence Act, 1872 - s.90 - Documents thirty years old
- Proof of execution of document - Presumption - Held: Once c
it is satisfactorily proved that the document is thirty years or
more in age, s. 90 thereupon dispenses with the formalities
of producing the executant and or the attestators thereto - On
facts, courts below decreed suit for mandatory injunction
directing the appellant to hand over the possession of the D
property, in favour of respondents, though it was contended
by the appellant that the said property was gifted to him by
the respondent, making him the owner of the property- Before
this Court, since the appellant palpably failed in proving the
signatures of the attestators to the Gift Deed, he pursued his
                                                                 E
case by evoking s. 90 as the cornerstone of his pleadings
 which cannot be accepted - Gift Deed was tendered in
evidence five months prior to having become thirty years old,
thus, the appeal is devoid of merits - Appellant did not even
attempt to prove the Gift Deed in any manner.known in law-
 Transfer of Property Act, 1882 - s. 123 - Registration Act, F
 1908 - S. 17, 34.

     Dismissing the appeal, the Court

    HELD: 1.1. The Appellant/Defendant had led                  G
evidence of himself as DW1 as well as DW2 to DW5, none
of whom were either of the attesting witnesses to the Gift
Deed. It has also not been clarified whether the attesting
witnesses or either of them was also witness before the
                           277
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    278      SUPREME COURT REPORTS              [2015] 1 S.C.R.


A   Sub-Registrar when the Gift Deed was accorded
    registration. It should be noted that law does not mandate
    that the attesting witnesses to a document must also be
    present at the time of its registration under the
    Registration Act. The Appellant palpably failed in proving
    the signatures of the attestators to the Gift Deed, and,
8
    therefore, has pursued his case by evoking Section 90 as
    the cornerstone of his pleadings. [Para 9] [285-8-D, H;
    286-A]

        1.2. Most often where the Courts countenance
C   document which has been in existence for thirty years or
    more, the likelihood of either of the attestators thereof
    being alive is rather remote. Once it is satisfactorily
    proved that the document is thirty years or more in age,
    Section 90 thereupon dispenses with the formalities of
D   producing the executant and or the attestators thereto.
    [Para 10] [286-D-E]

          1.3. It appears that the registered Gift Deed was
    sought to be proved/exhibited by the appellant himself.
E   If this occurred prior to the Gift Deed attaining the age of
    thirty years then Section 90 of the Evidence Act, 1872
    would not be of avail to the appellant, but if the appellant's
    testimony came to be tendered and recorded thirty years
    subsequent to the execution of the Gift Deed, then t~e
    presumption attached to Section 90 could be taken
F   advantage of. Lastly, it would logically follow that the
    contention of the appellant that the relevant date for
    computation of age in reverse should be the date of the
    judgment pf the trial court is clearly incorrect. [Para 11]
    (286-E-G]
G
         1.4. The first and fatal stumbling block of the
    appellant's case, then, is that at the time of tendering of
    the Gift Deed before the trial court, the thirty-year
    maturation period provided by Section 90 was not
H   satisfied, the Gift Deed having been tendered in evidence
OM PRAKASH (DEAD) TH. HIS LRS. v. SHANTI DEVI 279
                  & ORS.
after around 29 and one-half years, since he had alluded         A
to it in the course of the appellant examining himself
unlike the stage of pleadings this incontrovertibly
partook the nature of tendering evidence. The time
prerequisite to even essay availing of the Court's
discretionary powers under Section 90 had not been met.          B
Being a statutory requirement, courts cannot alter the
operation of the statute by reading into it as allowing a
document aged 29 and one-half years to be open to the
law's presumption. The judgment of the High Court below
considered the issue of the document's eligibility under
Section 90, and repudiated this submission, the
                                                                 c
document not even, echoing the words of Section 90,
"purporting" to be thirty years old at the time of
tendering. Even if the document purported or proved to
be thirty years old, the appellant would not axiomatically
receive a favourable presumption, the Section 90                 D
presumption being a discretionary one. Since the Gift
Deed was tendered in evidence five months prior to
having become thirty years old, the appeal is devoid of
merits. The appellant did not even attempt to prove the
Gift Deed in any m~nner known in law. [Para 12, 13] [286-        E
H; 287-A-E] .

   Surendra Krishna Roy v Mirza Mahammad Syed Ali
Muawali AIR 1936 PC 15 - referred to.

                     Case Law Reference:                         F

    AIR 1936 PC 15            Referred to           Para 6
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 20
of 2015
                                                                 G
     From the Judgment and Order dated 25.07.2013 of the
High Court of Punjab and Haryana at Chandigarh in RSA No. ·
;3433 of 2011

    R . P. Bhatt, Dhiraj, Reeta Dewan Puri, P. N. Puri for the
Appellants.                                                      H
     280     SUPREME COURT REPORTS                [2015] 1 S.C.R.


A       R. K. Rathore, Vinay Arora, Sudarshan Singh Rawat,
    Amrik Singh Ramgarh, for the Respondents.
        The Judgment of the Court was Delivered By.
        VIKRAMAJIT SEN, J. 1. Leave granted.
B
        2. The Appellant before us was, the Defendant in a suit filed
  by the Respondent-Plaintiff praying for a decree of mandatory
  injunction directing the Appellant to hand over vacant
  possession of the property in dispute, on the predication that
C the Respondent was the owner of that property. The Appellant
  has been successively unsuccessful in the three Courts below,
  viz., the Trial Court, where Respondent's suit for mandatory
  injunction was decreed against the Appellant; the First
  Appellate Court, which dismissed Appellant's First Appeal; and
D the High Court of Punjab & Haryana, which dismissed the
  Appellant's Second Appeal.

        3. Outlining the facts briefly, the Respondent-Plaintiff's
  case before the Trial Court was that he was the owner-allottee
  of the property and had parted with possession of the property
E to the Appellant on a nominal licence basis. The parties are
  closely related to each other - being brothers-in-law since the
  Appellant/Defendant was the husband of the Plaintiff's sister.
  The Plaintiff pleaded that it had been agreed between them that
  as and when required by the Plaintiff the Appellant would
F vacate the property. However, despite the Plaintiff's repeated
  requests the Appellant did not accede thereto; accordingly, the
  aforesaid suit came to be filed. Whilst admitting that he had
  initially been a licencee of the Respondent, the Appellant
  pleaded in his Written Statement that on 15.05.1970 the
G Respondent had executed a Gift Deed in his favour, thereby
  making him the owner of the property. The Appellant/Defendant
  also claimed that the Gift Deed had been registered in and by
  the Office of the Sub Registrar, Patiala, on 18.05.1970. In
  Replication, the Respondent-Plaintiff has denied execution of
H
OM PRAKASH (D~AD) TH. HIS LRS. v. SHANTI DEVI 281
        & ORS. [VIKRAMAJIT SEN, J.]
the Gift Deed saying that because of close relationship the           A
Defendant may have obtained his signatures by
misrepresentations, essentially admitting his signature on that
document.

     4. Concurrent findings of the Trial Court and the Appellate
Court are to the effect that the Gift Deed had not been proved        B
under Sections 68 and 69 of the Evidence Act; the evidence
that had been led was found wanting as regards proof of
execution of the Gift Deed. The High Court dismissed the
Second Appeal finding no substantial question of law before it
and no justification for interference with the findings of facts by   c
the Courts below.

    5. For facility of reference the relevant Sections of the
Evidence Act are reproduced:

     68. Proof of execution of document required by law               D
     to be attested.-lf a document is required by law to be
     attested, it shall not be used as evidence until one attesting
     witness at least has been called for the purpose of proving
     its execution, if there be an attesting witness alive, and
     subject to the process of the Court and capable of giving        E
     evidence:

     Provided that it shall not be necessary to call an attesting
     witness in proof of the execution of any document, not
     being a Will, which has been registered in accordance with       F
     the provisions of the Indian Registration Act, 1908 (16 of
     1908), unless its execution by the person by whom it
     purports to have been executed is specifically denied.

     69. Proof where no attesting witness found.-lf no
     such attesting witness can be found, or if the document          G
     purports to have been executed in the United Kingdom, it
     must be proved that the attestation of one attesting witness
     at least is in his handwriting, and that the signature of the

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    282      SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A       person executing the document is in the handwriting of that
        person.

        90. Presumption as to documents thirty years old.-
        Where any document, purp1::11til'r!!)o•.or proved to be thirty
        years old, is produced from any custody which the Court
B       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
c       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
D       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.
E
       6. The due execution and attestation of this Gift Deed is
  the sole point in issue before us. The Appellant has rested his
  case on the favourable presumption contained in Section 90
  of the Evidence Act i.e. that the Gift Deed being thirty years
F old should be taken as having been duly executed and attested.
  The Appellant seems to have made little or no endeavour to
  prove the Gift Deed without the advantage of this presumption.
  Under Section 90, before any question of presuming a
  document's valid execution can emerge, the document must
G purport and be proved to be thirty years old. The law
  surrounding the date of computation of the elapse of thirty-years
  stands long-settled, since the verdict of the Privy Council in
  Surendra Krishna Roy v. Mirza Mahammad Syed Ali Mutawali
  AIR 1936 PC 15, which held that the period of thirty years is to
H be reckoned, not from the date upon which the Deed is filed in
OM PRAKASH (DEAD) TH. HIS LRS. v. SHANTI DEVI 283
        & ORS. [VIKRAMAJIT SEN, J.]

Court but from the date on which, it having been tendered in A
evidence, its genuineness or otherwise becomes the province
of proof. Generally speaking, although the date on which the.
document has been tendered in evidence or subjected to being
proved/exhibited is the relevant date from which its antiquity is
to be computed, we think it necessary to underscore that it B
should be produced at the earliest so that it is not looked upon
askance and with suspicion so far as its authenticity is
concerned.

     8. Section 68 prescribes that if a document is required by
law to be attested, it shall not be used as evidence until one C
attesting witness at least has been called for the purpose of
proving its execution. Section 123 of the Transfer of Property
Act, 1882 mandates that a Gift Deed pertaining to immovable
property must be effected by a registered instrument signed by
or on behalf of the donor and attested by at least two witnesses. D
Section 17 of the Registration Act, 1908 also requires that
instruments of gift of immovable property "shall be registered."
Section 34, thereafter, requires the executants or their
authorized representatives of the document executed for
registration appear before the registering officer. However, the E
witnesses to a document need not also be the witnesses to its
registration. The pandect being Part X, comprising Sections 47
to 50 of the Registration Act would next be required to be
adverted to. Section 47 adumbrates that the registered.
document will take effect from the date of its execution. Section F
48 is indeed significant in that it clarifies that a registered
document will probatively prevail over oral agreements, except
for an agreement or declaration which does not itself
mandatorily require registration provided the oral agreement is
accompanied by delivery of possession. The preeminent G
Section 49 declares that if any document despite requiring
registration is not so done it shall not be received in evidence
or attain any legal efficacy, except in the context o,f a suit for
specific performance, or if it is intended to be used to prove,
any collateral transaction. We have ventured into this lengthy H
    284      SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   and arguably avoidable analysis to accentuate on two aspects
    - (a) the imperative necessity to produce in evidence a written
    instrument where it exists; and (b) that the registration of
    documents does not per se, ipso facto, render it impervious to
    challenge or and make its reception automatic in curial ·
B   proceedings.

        9. The Appellant/Defendant had led evidence of himself as
  DW1 as well as DW2 to DW5, none of whom were either of
  the attesting witnesses to the Gift Deed. It has also not been
C clarified whether the attesting witnesses or either of them was
  also witness before the Sub-Registrar when the Gift Deed was
  accorded registration. It should be noted that law does not
  mandate that the attesting witnesses to a document must also
  be present at the time of its registration under the Registration
  Act. Reasons remain recondite as regards this remissness or
D even as to their not being 'found' as postulated in Section 69,
  although there is a vague reference to both of them having died
  by the time the Defendant/Appellant had started recording his
  evidence. Section 69 provides for "proof where no attesting
  witness found". It is at once apparent that this provision
E anticipates a reasonable anxiety emerging out of the
  peremptoriness of Section 68, in that it addresses, inter a/ia,
  a situation where none of the attesting witnesses to a document
  (a gift deed, in this case) are alive at the time of the curial
  investigation thereof. Not leaving litigants forlorn for proof under
F Section 68, Section 69 places emphasis on handwriting(s) of
  the putative deceased or the 'not found' attestator(s), along with
  the signatures of the executant. We must be quick to elucidate
  that the position is akin to the reception of secondary evidence,
  in that the successful passage from the rigours of Section 68
G can be met contingent upon the proved non-availability of the
  attesting witnesses to a document. Litigants are, therefore, not
  faced with an evidentiary cul-de-sac. They can discharge their
  burden by proving, in the alternate mode and manners
  conceived by the Act, the signatures of the putative attestators
H along with the handwriting of the executant. The Appellant herein
OM PRAKASH (DEAD) TH. HIS LRS. v. SHANTI DEVI 285
        & ORS. [VIKRAMAJIT SEN, J.]
palpably failed in proving the signatures of the attestators to the A
Gift Deed, and, therefore, has pursued his case by evoking
Section 90 as the cornerstone of his pleadings.

     10. The Appellant has, in his effort to succeed before us,
variously and discrepantly theorised the thirty-year statutory
                                                                       8
requirement. As one ground in his Appeal, the Appellant has
pleaded for a relaxation of the thirty year period, admitting the
tendering in evidence of the Gift Deed on 14.10.99 in his
examination-in-chief/statement by which time only 29 years 5
months had elapsed. The plea for relaxation cannot be granted
as the antiquity of the document is the very raison d'etre for it      C
to be bestowed with the curial presumption that the signature
and every other part of such document which purports to be 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        D
by whom it purports to be executed and attested. The Court
could not have relaxed or discounted the short fall of seven
months. As another, the Appellant has also pleaded that the
period be calculated from 21.07.2000 the date of testimony of
DW5, the Registration Clerk from the Office of the Sub                 E
Registrar, Patiala, who had deposed (unsuccessfully, as
concluded by the Learned Courts below) as to the execution
of the Gift Deed; he produced the copy of the Gift Deed
available in the Sub Registrar's Office. On the date of the
deposition of DW5, thirty years had indubitably elapsed since          F
the execution and/or the registration of the Gift Deed.
Attempting again elsewise, the Appellant has submitted the
proper date of calculation as the date of judgment of the Trial
Court. As far as DW5 was concerned, he could only have, and
which he did, prove the date on which the Gift Deed was                G
presented for registration, i.e. 18.5.1970, thereb)$rproving to that
extent the antiquity of that Deed. If it crossed the thirty year
period the Defendant may have succeeded in claiming the
advantage of the presumption contained in Section 90 unless
the relevant date would be the date of the recording of his            H
    286       SUPREME COURT REPORTS                  [2015J 1 S.C.R.


A   statement. If the first attempt of the Defendant/Appellant before
    us, to prove the Gift Deed occurred on 21.7.2000, then we think
    that to be the proper and appropriate date from whence th<e
    thirty year period ought to be counted backwards. It also
    appears to us to be-facially plain that the Clerk from the Office
B   of the Sub-Registrar could only testify as to whether the
    document sought to be proved is in actuality was the one which
    was, in fact, duly registered, by producing the original records
    or if permissible by Rules by tendering a certified copy thereof.
    This witness could not possibly have said anything more. In the
c   event, it would have been sagacious for the Defendant to have
    delayed the recording of his own statement beyond 18.5.2000
    so as to inter any contention that the Gift Deed had been
    tendered in evidence after its attaining a thirty year vintage.
    Most often where the Courts countenance document which has
D   been in existence for thirty years or more, the likelihood of either
    of the attestators thereof being alive is rather remote. Once it
    is satisfactorily proved that the document is thirty years or more
    in age, Section 90 thereupon dispenses with the formalities of
    producing the executant and or the attestators thereto.

E      11. It appears that the registered Gift Deed was sought to
  be proved/exhibited by the Defendant himself. If this occurred
  prior to the Gift Deed attaining the age of thirty years then
  Section 90 of the Evidence Act, 1872 would not be of avail to
  the Defendant, but if the Defendant's testimony came to be
F tendered and recorded thirty years subsequent to the execution
  of the Gift Deed, then the presumption attached to Section 90
  could be taken advantage of. Lastly, it would logically follow that
  the contention of the Appellant/Defendant that the relevant date
  for computation of age in reverse should be the date of the
G judgment of the Trial Court is clearly incorrect.

         12. The first and fatal stumbling block of the Appellant's
    case, then, is that at the time of tendering of the Gift Deed
    before the Trial Court, the thirty-year maturation period provided
    by Section 90 was not satisfied, the Gift Deed having been
H
   OM PRAKASH (DEAD) TH. HIS LRS. v. SHANTI                 287
       DEVI & ORS. [VIKRAMAJIT SEN, J.]

tendered in evidence after around 29 and one-half years, since      A
he had alluded to it in the course of the DefendanUAppellant
examining himself unlike the stage of pleadings this
incontrovertibly partook the nature of tendering evidence. The
time prerequisite to even essay availing of the Court's
discretionary powers under Section 90 had not been met.             B
Being a statutory requirement, Courts cannot alter the operation
of the statute by reading into it as allowing a document aged
29 and one-half years to be open to the law's presumption. The
Judgment of the High Court below has considered the issue
of this document's eligibility under Section 90, and repudiated     c
this submission, the document not even, echoing the words of
Section 90, "purporting" to be thirty years old at the time of
tendering. We hasten to add that even if the document
purported or proved to be thirty years old, the Appellant would
not axiomatically receive a favourable presumption, the Section
                                                                    D
90 presumption being a discretionary one.

     13. While clarifying law as we have striven to do above,
since the Gift Deed in question was tendered in evidence five
months prior to having become thirty years old, the Appeal is
devoid of merits. The Appellant did not even attempt to prove       E
the Gift Deed in any manner known in law.

     14. The Interim Order is recalled. The Appeal is dismissed
but we desist from imposing costs.

Nidhi Jain                                      Appeal dismissed.