KAPOORCHAND Vs. LALCHAND

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and decree of the learned Additional District Judge, Tonk, came at Jaipur, dated 12-3-73 dismissing the suit for declaration, possession and injunction brought by the deceased-plaintiff Bhonri Lal, hereinafter be referred to as the plaintiff.

(2.) THE dispute relates to a house situate at Chokri Modikhana, Rasta Mani-haran at Jaipur, fully described in para No. 1 of the plaint. Briefly stated, the relevant facts on which the plaintiff based his claim are like this: According to the plaintiff, the house in dispute originally belonged to Motilal and his brother Pannalal, and their sons Baldeo alias Ballulal and Joharilal respectively. THE last male member who survived in the family of the aforesaid persons was Baldev. He too died sometime in the year 1912, leaving behind his daughter Mst. Jhamkobai and her children Mst. Gilkhabai, Mst. Teejabai, and the plaintiff.

(3.) I have carefully examined the document Ex. 1 and considered the arguments advanced on behalf of the parties. Sec. 90 of the Evidence Act reads as under: " Sec. 90where any document, purporting or proved to be thirty 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 hand-writing 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 person by whom it purports to be executed and attested. Explanationdocuments 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. This explanation applies also to sec. 81". The principle underlying this section is that if a private document 30 years old or more is produced from proper custody and is on its face free from suspicion the Court may presume that it has been signed or written by the person whose signatures it bears or in whose hand-writing it purports to be. In other words, the age of a document, its unsuspicious character, its production from proper custody and other circumstances are the foundation for the presumption of genuineness under sec 90 of the Evidence Act. If these requirements are satisfied, documents thirty years old prove themselves and their genuineness as to signatures, attestation etc. is presumed. In Shafiqun-Nissa vs. Shaban Ali Khan (l), the courts below notwithstanding that the document was thirty years old and has been produced from proper custody refused to raise the presumption under sec. 90 of the Evidence Act on the ground that the document threw great doubt on its genuineness. The courts below therefore did not admit the document in evidence without formal proof and rejected it when no such proof was given. When the case went before the Privy Council, the Judicial Committee held that the discretion exercised by the courts below was rightly exercised. In Mansukh Pana Chand Shah vs. Trikarnbhai Ichhabhai Pate! (2), it was observed that in the case of the document more than 30 years old the genuineness of which is disputed, the courts should consider the evidence both external and internal appearing on the face of document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution. 10. If the document Ex 1 is examined, keeping in mind the above principles, I am of the opinion that the court below was not justified in presuming the genuineness of the document under sec. 90 of the Evidence Act by order 17-1-68. A bare look at the document would show that it is not free from suspicion. The manner in which it is written, the spreading of the ink on the back side of the paper and the condition in which the two thumb impressions alleged to be of Smt. Gendbai and Smt. Gulabbai appear, indicate that the document is not beyond suspicion. Again, if we read the contents of the document, they also lead to the same inference. The document does not show why Mst. Jhamkobai or her ancestors were so much interested in Mst. Gendbai and Mst. Gulabbai as to allow them to live in the house free of charge. Not only that, Mst. Jhamkobai also permitted them to realise all the rent from other tenants and utilise the same for their maintenance. This sort of philanthropic act of Mst. Jhamko Bai would have been easily understandable if Mst. Jhamkobai had been affluent lady with abundant wealth, but the matter appears to be quite reverse. The plaintiff's own witnesses have admitted that Mst. Jhamkobai and her husband owned no house and they resided in a rented house throughout their lives. In these circumstances, it is highly improbable that Mst. Jhamkobai would grant a licence simply because Mst. Gendbai and Gulabbai were childless, indigent widows with none to support them. It is highly improbable that a lady like Mst. Jhamkobai who herself lived in a rented house would allow the two widows with whom she had no apparent relationship to occupy not only certain apartments of the house but also allow them to realise rent from other tenants of the house. The defendants in their written statements not only denied the genuineness of the document Ex. 1 but it was also asserted that it was a forged document. In this back-ground, I have no hesitation to say that the trial court was wholly unjustified in exercising its discretion under sec 90 of the Evidence Act to presume the genuineness of the document Ex. 1 by its order dated 17-1-68. The trial court in the circumstances should have required the plaintiff to prove the document.