LexSRI LAKHI BARUAH AND OTHERS versus SRI PADMA KANTA KALITA AND OTHERS
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L SRI LAKHI BARUAH AND OTHERS A v. SRI PADMA KANTA KALITA AND OTHERS FEBRUARY 26, 1996 [G.N. RAY AND B.L. HANSARIA, JJ.] B Evidence Act, 1872: Sections 63 and 90. Documents 30 years old-Alleged to be forged and f abricated-Produc- tion of ce1tified copy thereof-Presumption of genuineness-Applicability of- C Held : did not apply to a copy or certified copy even though the document was very old-Unless foundation was laid for its admission as secondary evidence by proof of loss or desttuction of the 01iginal and the copy having been produced from proper custody-Cowt has discretion in giving the presumption under Section 90 when due execution of document was do.ubt- ful--In view of the definite case of document being forged and fabricated, D original was required to be produced. The respondents filed a suit for a declaration that they were the lawful owners of the suit property and for recovery of possession thereof by evicting the appellants from the suit property. The Trial Court dis- E missed the suit but the appellate Court found that the sale deed was forged and thus null and void. The High Court dismissed the appeal filed by the appellants. Aggrieved by the High Court's judgment the appellants preferred the present appeal. On behalf of the appellants it was contended that the sale deed was a registered document and certified copy of the same was filed in the suit proceedings; and that the High Court had erred in not giving the presump- tion flowing from Section 90 of the Evidence Act, 1872 only because certified copy was filed. Dismissing the appeal, this Court HELD : 1.1. Presumption under Section 90 of the Evidence Act, 1872 does not apply to a copy or a certified copy even though it might be thirty years old; but if a foundation is laid for the admission of secondary evidence F G · under Section 63 of the Evidence Act by proof of loss or destruction of the H 1043 1044 SUPREME COURT REPORTS [1996] 2 S.C.R. A original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine. It is the discretion of the Court to refuse to give such presumption in favour of a party, if otherwise, there is occasion to doubt due execution of the document in question. [1051-G-H; 1052-B) B Seetnayya v. Subramanya, AIR (1929) PC 115 and Basant v. B1ijraj, AIR (1935) PC 115, approved. Khetter v. Klzetter Paul, ILR 5 Cal 886, overruled. C 1.2. In the facts of the present case, the presumption under Section 90 of the Evidence Act was not available on the certified copy produced by the appellants. The respondents' definite case was that the sale deed in favour of the appellants was a forged and fabricated document. Therefore, there was a requirement to produce the original copy so that the question of due execution by the respondents could have been contested by the D parties. [1052-A-B] .CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3866 of 1996. From the Judgment and Order dated 17.12.93 of the Assam High E Court in S.A. No. 46 of 1993. P.K. Goswami, C.K. Sasi, Kailash Vasdev and Ms. Vanita Sahni for the Appellants. ,i. - F AK. Ganguli and Ms. V.D. Khanna for the Respondents. The Judgment of the Court was delivered by G.N. RAY, J. Leave granted. Heard learned counsel for the Parties. This appeal is directed against Judgment dated December 17, 1993 G passed by the High Court of Guwahati in Second Appeal No. 46 of 1993. By the aforesaid J udgmttnt, the High Court dismissed the appeal preferred against judgment and decree dated March 29, 1993 passed by learned Assistant District Judge. Sonitpur in Title Appeal No. 7 of 1992 reversing the Judgment and decree dated February 28, 1992 passed by the learned H Munsif. Ilnd Court, Tezpur passed in Title Suit No. 55 of 1981. l l LAKHIBARUAHv. PADMAKANTAKALITA[G.N.RAY,J.] 1045 Shri Pushpa Kanta Kalita and Shri Padma Kanta Kalita, Namely A plaintiff Nos. 1 and 2, instituted Titled suit No. 55 of 1981 in the Court of learned Munsif at Tezpur against defendants Smt. Alkon Baruah, Shri Dakshi Baruah, Shri Basu Baruah, Shri Bikash Baruah, Shri Babul Baruah, Shri Jiban Baruha and Smt. Sonmal Baruah for a declaration that the plaintiff No. 1 was the sole and lawful owner of the lands in Schedule A B to the plaint and for further declaration that the registered sale Deed of 1950 of Tezpur was forged, null and void a
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