KOSARAJU RAMAIAH CHOWDARY Vs. SUNKARA VEERABHADRAIAH

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order of the District Munsif. Repalle rejecting two registered sale deeds dated 1895 and 1197 as it admissible in evidence on the ground that they do not bear the thumb impression or the signature of the executant. By the same order the District Munsiff held the document cated 1908 admissible in evidence as it bears the thumb impression of the person who is stated to have executed thedocumentiln this revision' petition it is contended that even those two documents are admissible in evidence. While the arguments seemed to have been addressed as are now addressed before ne, as regards the presumption to be raised under Section 90 of the Evidence Act in respect of those documents which are admittedly over 30 years old and as regards the presumption arising out of the registration of those documents, the Additional District Munsiff proceeded to hold these documents inadmissible on the ground that they do not bear either the signature or the thumb-impression of the so called executant. Whether the document is admissible in evidence or not is one thing and whether the presumption under Section 90 of the Evidence Act and of a particular document is totally different. These two documents are, registered sale-deeds in respect of immovable property and are clearly admissible in evidence. Whether a presumption as to due execution could be raised or not in view of the documents being ancient and if such presumption cannot be drawn for any reason whether the execution of those documents could be proved by other evidence or not and even the question whether the document could at all be said to have been execated is a matter that arises after these documents are admitted in evidence. The admission of the document does not lead to the 'conclusion that they are at all executed either on the basis of presumption or one the basis of positive proof let in by the person who according to the plaintiff has executed those.

(2.) The order of the trial court in as much as it holds that these two documents are inadmissible in evidence, deserves to be set aside. However, inasmuch as the trial Court seems to have considered the question whether a presumption could be raised under Section 90 of the Evidence Act in respect of registered documents which do not bear either the signature of the executant or his thumb impression, in order to obviate further controversy over the matter, I proceed to consider that question. Under Section 90 of the Evidence Act, where' a document purports to be or proved to thirty years old and is produced from proper custody, the court may presume that the signature and every other part of the document which purports to be in the hand writing of any particular person is in that person's handwriting In the case of a document executed or attested in tbose circumstances, the court may presume that it was duly executed and attested by every person by whom it purports to be executed and attested. For the application of this section, firstly the document must be thirty years old, secondly it must be produced from proper custody and thirdly this document must be purported to be in the handwriting of any particular person or it must be purported to be executed or attested by certain personsi Then the necessary presumption mentioned above may be drawn. Here in the instant case, the executant admittedly is an illiterate person and was not capable of putting his signature. His name is written on the document at the place where usually the signature of the executant appears; His name is written along with the words "NISANI", It is not the case of any of the parties that either the name or the word 'NISANI" were written by the executant himself, for hs was an illiterate person In view of section 90 of the Act before any presumption could be drawn, the document must first be purported to have been executed and it is not the case of any of the parties here that the executant himself put his signature. 'Signature' or the word 'sign' as per the General Clauses Act where the petson is uuable to write his name, include 'mark' but that mark should be of the Executant, If the signature of the executant, even in its widest meaning cannot be said to have been affixed to these two documents, it cannot be said to have been executed by the person who is purported to have executed it. But what is contended by Mr. Lakshmana Rao, the learned counsel for the petitioner is that the petitioner who has written the name of the executant and the word 'Nisani' was authorised by the executant to write the document as well as to write the name of the executant and the w ord 'Nisani' in token of the execution of the document by the executant himself. In other words the scribe was also authorised to sign on behalf of the executant, and therefore the document should he deemed to have duly executed and the necessary presumption under Section 90 of the Evide nce Act, drawn as to due execution, Where the document is not executed by the executant himself but some one was authorised by the executant, Section 90 of the Evidence Act does not authorise the drawing of a presumption in regard to the authorisation as well. This question is no longer resintegra.

(3.) The Supreme Court in HARIHARA PRASAD Vs, DEONARAIN PRASAD laid down that if the document purported to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, Section 90 of the Evidence Act does not authorise raising of a presumption as to the existence of the authority on the part of the agent to represent that persont Therefore, in the present case merely because the document purports to be 30 years old, a presumption as to due execution cannot be raised until the person who has signed the document for the executant is proved to have been duly authorised to sign on behalf of the executant and that he in fact wrote the name of the executant with the animus of executing the document It may the that the scribe merely wrote the name of the executant along wi(h the words 'Nisani' in order to indicate the place where the executant in token of having executed the document ought to affix his thumb impression and may not have actually written those words with the animus of executing it on behalf of the executant. In regard to these factors, no presumption is allowed to be drawn under Section 90 of the Act. Therefore, the first question the court will have to determine 'is whether the document is at all executedi Once on the evidence let in it could be held to be executed, then the presumption that it was duly executed could be drawn, under Section 90 of the Evidence Act since the document is admittedly 30 years old and purports to have been produced from proper custody which are all matters for the trial court to decide on the facts and the circumstances of the case. In A. S. N. NAINA PILLIAH MARKAYAR AND OTHERS Vs. T. A. R, A. R. M. RAMA NATHAN CHETTIAR AND OTHERS Sadasiva Ayyar J. speaking for the Bench held 'that sec. 90 of the Evidence Act does not enable the court to presume that unsigned accounts which do not purport to be in the handwriting of any particular person or persons were written by the authorised accountants of the temple to which the accounts purport to relate and following that judgment in NAGARAJA RAO Vs. KOOTHAPPAN held that Section 90 cannot be relied upon for raising a presumption as to the document which do not purport to be in any known person's hand writing or to be signed by any known person. In NARENDRA NATH Vs. DHULIYAN MUNICIPALITY a Bench of the Calcutta High Court held that only in such documents as bear the signature of the writer or of witnesses to the documents that the presumption can arise. In these circumstances, as to who is the executant is a fact to be established and not a matter for presumption merely because the document is thirty years old, I am in entire agreement with the above statement of law.