Documentary Evidence

Section 61 to 90
Interpretation Clause 3 explains “Document” : All documents produced for the inspection
of the court.
Documents can be of two type Public and private
Section 74 gives list of public documents and
S. 75. all others are Private documents
Documentary Evidence
S. 61 Says contents of documents be proved by
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Primary Evidence S. 62 Secondary Evidence S.63
 Document
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S. 61 Contents of documents Execution or Authorship of documents
__________________________ ↓ ↓
↓ ↓ Document require registrartion ↓
Primary Secondary Others Documents signatures
__________________↓ of Executants be proved
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Circumstances Types of Secondary Evidence
• S. 63 Secondary evidence.—Secondary evidence means and includes
—(1) Certified copies given under the provisions hereinafter
contained1;1;"
• (2) Copies made from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies compared with
such copies;
• (3) Copies made from or compared with the original;
• (4) Counterparts of documents as against the parties who did not
execute them;
• (5) Oral accounts of the contents of a document given by some person
who has himself seen it.
Illustrations in Section
• This section explained what is secondary evidence. Primary evidence of the best evidence
and secondary evidence is given in the absence of the best evidence that his primary
evidence..
• Clause 1 certified copies is defined in section 76.
• The certified copy is sufficient secondary evidence of the existence, condition and
contents of a document but not its execution.
• Section 79 states certified copies are presumed to be genuine
• public documents and certain other documents may be proved by tendering certified
copies section 77 and 78..
• Production of document can courts is regulated by section 298 of the Cr.P.C. and order 11
to 13 of CPC in civil cases.
• When we are leading a documentary evidence two question arises
• 1. How the contents of the documents are to be proved section 61-66
• 2. That the document used in evidence in genuine section 67-73
• presumptions that may arise in respect of a document which is tendered in evidence and
dealt with in section 79 to 90.
• 79. Presumption as to genuineness of certified copies.
• 80. Presumption as to documents produced as record of evidence.
• 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and
other documents.
• 81A. Presumption as to Gazettes in electronic forms.
• 82. Presumption as to document admissible in England without proof of seal
or signature.
• 83. Presumption as to maps or plans made by authority of Government.
• 84. Presumption as to collections of laws and reports of decisions.
• 85. Presumptions as to powers-of-attorney.
• 85A. Presumption as to electronic agreements.
• 85B. Presumption as to electronic records and electronic signatures.
• 85C. Presumption as to electronic signature certificates.
• 86. Presumption as to certified copies of foreign judicial records.
• 87. Presumption as to books, maps and charts.
• 88. Presumption as to telegraphic messages.
• 88A. Presumption as to electronic messages.
• 89. Presumption as to due execution, etc., of documents not produced.
• 90. Presumption as to documents thirty years old.
• 90A. Presumption as to electronic records five years old.
• S . 90 Presumption as to documents thirty years old.
A document which is thirty years old is presumed to be genuine and genuine in all respects.
This presumption is the discretion of the court.
>> Words…. “Court May presume”.. Court may presume its genuineness , but not bound.
• Section lay down conditions
1. The document should be thirty year old.
2. It should be produced from custody which appears to the court in the particular case to
be proper.
3. The document must be in appearance free from suspicion.
• THIRTY YEARS OLD: Analysis of the section
Meaning of thirty year old: “Document purport to Be” . Meaning of purport is
meant stating to be.
Example: Document having date of execution, if date is not mentioned , it can be
proved other evidence,
A document can be written a month back and anti dated.. Back date is put.. So
caution is necessary. …>
K. Mani Kyalu vs Venna Perumallayya AIR 2000 NOC 20 (AP)
Mohd Bhai Rasul Bhai Malik V Amir Bhai Rahimbhai Malik AIR 2001 Guj 37: H C
held that presumption permissible is to signatures, execution and allegation in
documents: its genuineness. Thirty year custom cannot be proved u/S 90.
Where document about 30 years old:
Document tendered in trial court 29y 6 m : court cannot alter the operation of the
statute for allowing it. Other wise also it is the discretion of the court.
• Reckoning of: important question is reckoning of thirty years. A document may be
produced in court and on the date of argument it more than thirty years , it can be relied
on without proving it and its genuiness can presumed,
• Om Parkash Vs Shanti Devi AIR 2005 SC 976
• Surendera krishna Roy vs Mirza Mohammad. AIR 1936 PC 15,
• Babunandan Vs Board of Revenue AIR 1972 ALL 406
• PROPER CUSTODY: has been explained in the explanation
• it should be produced from proper custody.
a) the place where the document in question would naturally be,
b) was under the care of a person with whom it would naturally be,
c) any custody which is proved to have had legitimate origin,
d) under the circumstances of the case the custody from which the instrument is
produced is probable.
Chitra Devi vs Ram Devi AIR 2002 HP 59
• Appearance free from Suspicions:
• Presumption relates to signature and writings only.
Gharau vs Sheo Ratan AIR 1981 All 3, Bai Sakeena Bai vs Gulam Rasool AIR 1981 Guj 142.
Presumption of copies of ancient documents:
Document thirty years old .. Its copy proved as secondary evidence U/s 65 evi Act it can be
taken into consideration.
Badan Singh Vs Brijraj AIR 1935 PC 132.
Supreme court in the cases of Shital Vs Sant Ram AIR 1956 SC 606,Hari Parshad vs Deo
Narian 1956 SC 305, Sheo Lal Vs Chet Ram AIR 1971 SC 2342
The languages of Section 90 required for the production of a particular document in regard
to which the court is invited to make a statutory presumption. If the document produce is a
copy, admissible as secondary evidence under section 65 and is produced from proper
custody and is over 30 year old, then only signature authenticating the copy may be
presumed to be genuine; but production of the copy is not sufficient to raise the
presumption of due execution of the original.
Anonymous writing: This only intends to apply only to document which are signed. Dogar Mal v
Sunan Ram AIR 1944 Lah 58.
Where a document was gift cum will and was 30 years old , coming from proper custody and was
registered , court presumed its execution.
Kirpal Singh Vs Aas Kaur AIR 1997 P&H 240.
Opportunity to a party to prove education of document if presumption not drawn. If the court
does not want to draw presumption then party relying upon that presumption should be afforded
an opportunity to prove that document by direct evidence otherwise it will amount to a great
injustice.
Chanda Bai vs AnwarKhan AIR 1997 MP 238
the Gazzatte notification was issued 32 years ago to the suit and producing evidence by the
plaintiff no circumstances were proved that it might have not been published as required by law. It
was presumed as per law subject to a rebuttal right to the defendant regarding that presumption.
Rohit Singh v State of Bihar AIR 2007 SC 10
an application made by the father far admission to a school which was more than 30 year ago,
held held to attract presumption under section 90 of evidence act.
Des Raj Vs Bodh Raj AIR 2008 Sc 632.