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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  20  OF 2015 [Arising out of SLP (C) No. 921 of 2014]

OM PRAKASH (DEAD) TH. HIS LRS.                    .. Appellant(s)

Vs.

SHANTI DEVI & ORS.          ..Respondent(s)

J  U  D  G  M  E  N  T

VIKRAMAJIT SEN, J.

1 Leave granted.

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 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

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Appellant’s First Appeal; and 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 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 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 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 the Gift Deed  

saying that because of close relationship the Defendant may have obtained  

his signatures by misrepresentations, essentially admitting his signature on  

that document.

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4 Concurrent findings of  the Trial Court and the Appellate Court are to  

the effect that the Gift Deed had not been proved 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 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 to  be attested.—If 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 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  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.—If no such  attesting witness can be found, or if the document 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 person executing the  document is in the handwriting of that person.  

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  

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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.

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 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 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 be reckoned, not from the date  

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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  

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 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 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.   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  

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  

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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 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  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 of a suit for specific performance, or if it  

is intended to be used to prove any collateral transaction.   We have ventured  

into  this  lengthy  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 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 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  

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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 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 anticipates a reasonable anxiety emerging  

out of the peremptoriness of Section 68, in that it addresses,  inter alia,  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  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 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  

along with the handwriting of the executant.   The Appellant herein palpably  

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failed  in  proving the  signatures  of  the  attestators  to  the  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 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 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  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 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  

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available in the Sub Registrar’s Office.  On the date of the deposition of  

DW5, thirty years had indubitably elapsed since 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 presented for registration,  

i.e. 18.5.1970, thereby proving 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 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 the thirty year period ought to be counted backwards.   It  

also appears to us to be facially plain that the Clerk from the Office 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 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  

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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  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.  

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 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 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  

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thirty-year maturation period provided by Section 90 was not satisfied, the  

Gift Deed having been tendered in evidence after around 29 and one-half  

years, since he had alluded to it in the course of the Defendant/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. 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  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 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 the Gift Deed in any   manner known in law.

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

from imposing costs.  

                       ............................................J.              [ANIL R. DAVE]  

                         ............................................J.

            [M.Y. EQBAL]

                          ............................................J.              [VIKRAMAJIT SEN]

New Delhi January 05,  2015.

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