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

Citation: [2015] 1 S.C.R. 277 · Decided: 05-01-2015 · Supreme Court of India · Bench: ANIL R. DAVE · Disposal: Dismissed

Judgment (excerpt)

[2015] 1 S.C.R. 277 
OM PRAKASH (DEAD) TH. HIS LRS. 
V. 
SHANTI DEVI & ORS. 
(Civil Appeal No. 20 of 2015) 
JANUARY 05, 2015 
[ANIL R. DAVE, M.Y. EQBAL AND 
VIKRAMAJIT SEN, JJ.] 
Evidence Act, 1872 - s.90 - Documents thirty years old 
A 
B 
- 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 
H 
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 
8 
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. [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 
F 
G 
presumption attached to Section 90 could be taken 
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] 
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 
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. 
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 
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 favo

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