HOJI SHEIKH BODHA Vs. BABU SUKHRAM SINGH

JUDGEMENT

(1.) This is a question of law which arose in a Letters Patent Appeal which came before my brother Sulaiman and myself. Owing to certain decisions, to which it will be necessary to refer in a moment, the result of the discussion by way of appeal from the judgment of the learned Judge of this Court was that the following question was referred to this Bench. Whether the presumption permitted by Section 90 of the Evidence Act in the case of a document purporting to be 30 years old, that it was duly executed by the party by whom it purports to be executed includes the presumption that when the signature of the executant purports to have been made by the pen of the scribe the latter was duly authorized to sign for him.

(2.) It should be observed that that question is carefully confined to the ambit or extent of the presumption of due execution which is permitted by Section 90. It does not purport to open the door to a discussion whether in the particular case the document purported to have been executed by the executant or party, through or by the pen of the scribe. That question therefore is not before us. It is assumed for the purpose of the general question of interpretation. For my own part I merely wish to say that it seems to be a question which must depend upon the circumstances of each case as they appear, either from the document, or from matters outside, and in this case it is a matter which still remains to be decided by the Bench. which will finally dispose of the appeal.

(3.) The question therefore is a simple one and deals only with a document which purports to be executed by the party or executant, not by the hand of the executant himself, but by the pen of the scribe. There must have been thousands of such cases occurring for generations in India, and there must be a large number, which from time to time coma into the Courts, where the document is more than 30 years old. In our view the expression "duly executed" must include all the facts which would be necessary in order to establish duo execution before a Court by positive evidence, if the obligation producing positive evidence were not dispensed with by the presumption. In other words, Mr. Justice Neave put it in argument if this document were ten years old, it would be necessary to prove that the scribe who purports to have executed it with the authority of the executant had such authority in fact. If that fact may not be presumed in the presumption of due execution which is permitted by Section 90, that portion of the section would become a dead letter. We therefore hold that the question must be answered in the affirmative.