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03 Ancient Document
ANCIENT DOCUMENT (section 90)
• Section 90 provides Presumption as to documents 20
years old, where any document purporting or proved
to be twenty years old is produced from any custody
which the court in the particular case considers proper,
the court may presume that the signature and every
other part of that 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.
• Section 90 of the Indian Evidence Act 1872 provides
the presumption as to documents thirty years old.-
Where any document, purporting or proved to be thirty
Truth
years old, is produced from any custody which the
Court 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 duly executed and attested by the
persons by whom it purports to be executed and
attested.
Requirements Held: “…The presumption relates to the execution of the
under
section 90
Otherwise Produce from
Not less than
Free from a proper
20 years old
suspicion custody
LAW 4111 Evidence II
Hearsay Evidence v Ancient Document Evidence
• An ancient document, in the law of evidence, refers to
both a means of authentication for a piece of
documentary evidence, and an exception to the
hearsay rule.
• An “ancient document” is one that may be deemed
authentic without a witness to attest to the
circumstances of its creation because its age suggests
that it is unlikely to have been falsified in anticipation of
the litigation in which it is introduced.
• An ancient documents will be received as competent
evidence if they are “fair on their face” (i.e., offer no
evidence of tampering/corruption/doubt) and have
been maintained in “reasonable custody”
What do you mean competent evidence?
Accuracy Trustworthiness Credible
• The presumption goes only to the genuineness of the
document but not to the truth of the contents.
• A judge can still decide that the author of the document
was lying or mistaken when the author wrote it.
• Per Sharma J in Commissioners of the Municipality
of Malacca v Sinniah [1974] 1 MLJ 77, 79
documents, i.e. signature. attestation, etc. In other
words, to its genuineness but not to the truth of its
contents.
1
The person presenting a document under s. 90 is relieved of the
necessity of proving that it was executed by the person
who is purported to be the executant’s but the Court
will not presume the correctness of any statement in
the document.”
Commissioners of the Municipality of Malacca v Sinniah
[1974] 1 MLJ 77,
• The defendant was an employee of the plaintiff and
had been allotted (given) quarters by reason of his
employment with the plaintiff.
• When he joined the service, his particulars were
entered on the Record of Service and in accordance
with the age given therein he was retired from
service when he attained the age of fifty-five in 1968.
• The defendant questioned the veracity of that entry.
He did not vacate the quarters when required to do
so and proceedings were instituted for possession.
• The plaintiff filed this action on 2 September 1970
claiming possession of the quarters, damages for
unlawful occupation thereof and costs.
• The only plea taken up in the defence was that as the
defendant was born in 1922, he could not be evicted,
that his retirement was wrongful, that he was entitled
to remain in occupation of the quarters until he
reaches the age of fifty five and that he could not be
asked to pay a rental of $ 20 per month or any sum
whatsoever as from 1 January 1969.
• Amongst the evidence tendered here was the Record
of Service of the defendant himself. It was prepared
in the year 1938.
• Court has decided that the record has been produced
from proper custody and, in the view, is altogether
free from any suspicion. According to the record of
his service, he was twenty five years of age at that
time.
• He had come from India with his father and brother.
He did not have with him any certificate of birth at
that time.
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03 Ancient Document
• The defendant questions the veracity of the entry
made showing his age as twenty five in 1938.
• It is, however, not conceivable how such an entry
could have been made unless the defendant himself
represented to his employer at the time of his
employment that he was twenty five.
• He could serve the Municipality up to the age of fifty“That the production of a copy of the document is not sufficient to
five. If he was twenty five in 1938, he must have been
born in 1913 which meant that he could remain in the
employment of the Municipality up to 1968.
• Held:
• The defendant had not discharged the onus of
showing that the entries in the Record of Service
were incorrect;
• The defendant was estopped from denying that he
was twenty-five years of age at the time of his
employment as stated in the Record of Service.
• The period of 20 years is reckoned (calculate/
consider) from the date the document is tendered
in evidence.
• Bakar bin Salleh v Haji Abdul Malek Bahadan
[1991] 1 CLJ 500
- The period of 20 years is calculated from the date
the document is tendered in Court.
• Per Sir George Rankin in Surendra Krishna v Mirza
Mohammad AIR 1936 PC 15, 17:
“Their Lordship are however of opinion that under section 90 of the
Evidence Act 1950, the period of 30 years is to be
reckoned, not from the date upon which the deed is filed
in court but from the date on which, it having been
tendered in evidence”.
Followed in Overseas Union Insurance Limited v Turegum
Insurance Co. [2001] 3 SLR 330. Per KC Vohrah J in Ghazali Bin Arifin v Ahmad Bin Bakar
Proper Custody
• Bishop of Meath v Marquis of Winchester
- “proper custody” means keep at place where it is
reasonably and naturally expected to be even though
it was not in the safest of places.
LAW 4111 Evidence II
• Where only a copy of the document is produced, the
presumption under the section does not arise.
• Per Tan Chiaw Thong J in Tsia Development
Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ
301, 302 stated that
justify the presumption of due execution of the original
under section 90. This ground is based on the Privy
Council case of Kunwar Basant Singh & Ors v Kunwar
Brij Raj Saran Singh (1935) IA 180”
Otherwise Free from suspicion
• If there is a dispute as to the genuineness of such
documents (having regard to s 90 of both the Malaysian
and Indian Acts) one needs to heed (take
note/observed) what Madgavkar J said at p 40 in
Mansukh Panachand Shah v Trikambhai Icchabhai
AIR [1930] Bom 39, after he had referred to the Privy
Council case of Shafiqunnissa v Shaban Ali Khan
[1904] 26 All 581: “... it is necessary, therefore, for the
courts to consider the evidence external and internal
of the document in order to enable them to decide
whether in any particular case they should or should not
presume proper signature and execution.”
• In exercising the discretion vested in the court under
section 90 of the EA 1950, it is also important to
exercise due care and caution as has been pointing
out in Ghulam v Allahdin 19 IC 964 and Jesu Lal v
Gangga Devi 20 IC 868.
• In raising the presumption under the section, the court
may rely on internal and external evidence of the
document.
[1992] 1 MLJ 282, 286
• The plaintiff is the son of Ariffin bin Osman and the
administrator of his estate.
• The defendants are the beneficiaries of one Bakar bin
Awang Ahmad’s estate.
• Both Ariffin and Bakar have died.
2
• The plaintiff pleaded that his father, Ariffin,
purchased from Bakar 1/3 of Bakar's undivided
share, at Lot 355, Kota Setar, Kedah.
• The land was alleged to have been purchased
pursuant to a sale and purchase agreement dated
according to the Muslim calendar, 11.6.1374 which
corresponds with the Gregorian calendar dated 3
February 1955.
• The defendants are now registered owners of the
said share.
• The plaintiff seeks a declaration that the defendants
are bare trustees of the said share and for an order
that the defendants do execute a transfer of the said
share to him as administrator of the estate of Ariffin
bin Osman, deceased.
• Held, allowing the plaintiff’s:
• The purported sale and purchase agreement was
tendered in court. The contents of the document
show that there was a sale by the first defendant’s
father of his share of the land for $ 800 on 11.6.1374
(Muslim calendar) (3 February 1955, Gregorian
calendar) to the plaintiff’s father. The court had no
hesitation in accepting that the document was
officially stamped at the Kota Star Stamp Office on 3
February 1955 and that the document has been
proved to be more than 20 years old.
• There is one feature in the document which needs
further investigation, ie the date on which it was
stamped was the very same date on which the alleged
vendor of the land, died. If there is a dispute as to the
genuineness of such documents (having regard to s
90 of the Evidence Act 1950) , it is necessary for the
courts to consider the evidence external and
internal of the document in order to enable them
to decide whether in any particular case they
should or should not presume proper signature
and execution.
• There is no evidence as to the time when Bakar died.
And there is nothing to indicate that he could not
have signed the document because he had died
earlier. On the other hand, the evidence shows that
the purported purchaser of the land, Ariffin, had the
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03 Ancient Document LAW 4111 Evidence II 3

document of title in respect of the land in his

possession and was in occupation of the land until he
himself died in 1984. The inference is that having
regard to the common course of natural events, Bakar
must have passed it to him.

• Section 90 must be read together with section 4 (1).

• It is presumption of fact, it is a permissive
presumption, so it is up to the discretion of the court
to decide whether to accept it or not.
• Per Ong J in Mohamed Ali v PP [1962] MLJ 230 states
that “Presumptions of fact must not be drawn
automatically, or as it were, by rule of thumb, without
first considering whether in the circumstances of each
particular case there adequate grounds to justify any
presumption being raised”.

• If the document sought to be produced is not admissible

under this section, it is still open to the party tendering
it to establish that it is admissible under any other
provision of the Act. See Tsia Development
Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ
301.