Presumption of Authenticity: Judicial Treatment of Documents Thirty Years Old under Indian Evidence Law

Presumption of Authenticity: Judicial Treatment of Documents Thirty Years Old under Indian Evidence Law

Introduction

The ability of courts to dispense with full proof of antiquated documents is rooted in both necessity and convenience. Section 90 of the Indian Evidence Act, 1872 (“Evidence Act”) empowers a court, in its discretion, to presume the authenticity of documents that are at least thirty years old when produced from proper custody. Although apparently straightforward, the provision has generated complex jurisprudence touching upon the burden of proof, admissibility of secondary evidence, and category-specific exclusions such as wills. This article critically analyses the doctrinal foundations and evolving judicial treatment of Section 90, with particular reference to recent and seminal authorities of the Supreme Court and various High Courts.

Statutory Framework

Section 90 states that where a document “purporting or proved to be thirty years old” is produced from “proper custody”, the court may presume that it is duly executed and attested.[1] The discretion is aided but not fettered by Illustration (a) and the definition of “may presume” in Section 4, which enables the court either to accept the fact as proved until rebutted or to call for proof.[2]

Two statutory nuances deserve emphasis. First, the Uttar Pradesh amendment substitutes “twenty years” for “thirty”, thereby lowering the temporal threshold within that State.[3] Second, Section 65 and Section 63 govern the admission of secondary evidence; the presumption of authenticity can arise only after the document, or an admissible secondary copy, is properly before the court.

Judicial Evolution

Early Privy Council and Supreme Court Approach

The Privy Council in Harihar Prasad Singh v. Deonarain Prasad (1956) clarified that the presumption attaches to originals, not merely to copies, unless the copy is itself secondary evidence admissible under Section 65.[4] This restrictive view has consistently shaped Indian jurisprudence, compelling parties to prove the execution of original documents where copies alone are relied upon.

Rigorous Scrutiny in Inheritance Litigation

In State of Bihar v. Radha Krishna Singh, the Supreme Court refused to accept genealogical charts and ancient documents lacking credible linkage, underscoring that Section 90 merely presumes execution, not the truth of contents.[5] The case is frequently cited to demonstrate that antiquity cannot rescue an otherwise speculative pedigree claim.

Discretionary Nature and Timing of Presumption

High Courts have stressed that the presumption is optional. In Gaya Prasad v. Nathu Singh the Allahabad High Court held that a court may decline to draw the inference for “valid reasons”, reinforcing that Section 90 is grounded in judicial discretion.[6] The Rajasthan High Court in Hazarilal v. Shyamlal further clarified that the presumption cannot be invoked for the first time at the stage of judgment if the proponent earlier attempted, and failed, to prove execution by direct evidence.[7]

Certified Copies and Secondary Evidence

The admissibility of certified copies that are themselves thirty years old has provoked divergent views. While Gadey Venkata Ratnam (Madras HC) accepted that a certified copy over thirty years old could raise a limited presumption regarding the authenticity of the certification itself, later decisions insist that Section 90 does not obviate the need to establish the execution of the original document.[8] The Supreme Court’s decision in U. Sree v. U. Srinivas echoes this caution by disallowing a photostat letter absent foundational proof under Section 65.[9]

Interaction with Order 41 Rule 27 CPC

Parties often seek to cure evidentiary defects on appeal by invoking Order 41 Rule 27 CPC. Union of India v. Ibrahim Uddin admonishes appellate courts to admit additional evidence only for limited purposes, such as enabling the court to pronounce judgment, and not to fill lacunae resulting from tactical omissions at trial.[10] Consequently, a party cannot circumvent Section 90’s requirements by tendering ancient documents for the first time in second appeal.

Exclusion of Wills from the Presumption

The Supreme Court has repeatedly held that the Section 90 presumption does not apply to wills, given the stringent formalities mandated by Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Evidence Act.[11] Recent decisions—M.B. Ramesh v. K.M. Veeraje Urs and Ashutosh Samanta v. Ranjan Bala Dasi—affirm that at least one attesting witness must be examined, or other evidence adduced under Section 71 if such witness is unavailable.[12]

Essential Conditions for Invoking Section 90

  • Age: The document must be proved or appear on its face to be thirty years old (twenty in U.P.). The cut-off date is ordinarily the date of tender in evidence, not the date of judgment.[13]
  • Proper Custody: Custody is “proper” when it is natural, legitimate, and unsuspicious.[14]
  • Facial Genuineness: The document should be free from patent suspicion; forged or altered instruments do not qualify.[15]
  • Originality: Except where secondary evidence is independently admissible, the original must be produced.[16]

Policy Rationale and Contemporary Challenges

The rule is “founded on necessity and convenience” because witnesses to ancient documents are presumed dead, and proving handwriting decades later is often impossible.[17] Nevertheless, modern record-keeping and digitisation raise questions about whether the thirty-year benchmark remains apt. In the NRC litigation (Assam Public Works v. Union of India), the Supreme Court conditionally accepted several categories of pre-1971 documents to establish citizenship, implicitly relying on Section 90 principles while balancing national security concerns.[18]

Critical Appraisal

The jurisprudence evinces a tension between evidentiary convenience and the risk of fraud. Courts have responded by (i) emphasising discretionary, case-by-case application; (ii) insisting on proper custody and absence of suspicious circumstances; and (iii) carving out category-specific exclusions (e.g., wills). While these safeguards are laudable, inconsistency persists, particularly regarding certified copies. A uniform legislative clarification—perhaps accepting certified copies issued under the Registration Act as sufficient where originals are lost—could enhance predictability without diluting probative rigour.

Conclusion

Section 90 serves an indispensable evidentiary function but demands careful judicial calibration. The provision presumes execution, not veracity; it is permissive, not obligatory. Recent authorities underscore that ancient documents cannot displace substantive proof where the underlying claim is dubious, nor can they override explicit statutory mandates, as with wills. Practitioners must therefore treat Section 90 as a facilitative tool rather than a panacea, ensuring that ancillary requirements—proper custody, absence of suspicion, and, where necessary, compliance with Sections 63 and 68—are meticulously fulfilled. Future debates will likely pivot on the admissibility of digital surrogates of ancient originals, a frontier that will test the resilience of a nineteenth-century doctrine in a twenty-first-century evidentiary landscape.

Footnotes

  1. Indian Evidence Act, 1872, s. 90.
  2. Id., s. 4 (“may presume”).
  3. U.P. Act 24 of 1954, s. 4(b), substituting “twenty” for “thirty”.
  4. Harihar Prasad Singh v. Deonarain Prasad, AIR 1956 SC 305.
  5. State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118.
  6. Gaya Prasad v. Nathu Singh, 2019 SCC OnLine All 3580.
  7. Hazarilal v. Shyamlal, 2002 SCC OnLine Raj 103.
  8. Gadey Venkata Ratnam v. Gadey Sitaramayya, 1950 SCC OnLine Mad 24.
  9. U. Sree v. U. Srinivas, (2013) 2 SCC 114.
  10. Union of India v. Ibrahim Uddin, (2012) 8 SCC 148.
  11. Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687.
  12. M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490; Ashutosh Samanta v. Ranjan Bala Dasi, 2023 SCC OnLine SC 1220.
  13. Hazarilal v. Shyamlal, supra note 7.
  14. Evidence Act, 1872, s. 90, Explanation.
  15. Ramakrushna Mohapatra v. Gangadhar Mohapatra, AIR 1958 Ori 5.
  16. Privy Council in Harihar Prasad Singh, supra note 4.
  17. Ramakrushna Mohapatra, supra note 15.
  18. Assam Public Works v. Union of India, (2019) supra context; order dated 24 Oct 2018.