Presumption U/S 90 Evidence Act Is About Proper Execution of Document Which Is 30 Years Old & Not Proof Of Execution: Karnataka HC
The Karnataka High Court observed that the presumption under Section 90 of the Indian Evidence Act is about proper execution of a document that is 30 years old and not proof of execution.
The Court was hearing Miscellaneous Second Appeal filed under Order 43 Rule 1 CPC challenging the Judgment by the Prl. Senior Civil Judge and JMFC setting aside the judgment and decree dismissing the suit filed by respondent No.1.
The bench of Justice V Srishananda observed, “While considering Section 90 of the Indian Evidence Act, the Trial Court failed to note that presumption is with regard to proper execution of the document which is 30 years old and not the proof of execution thereof.”
Advocate G S Venkat Subbarao appeared for the Appellant and Advocate Harish HV appeared for the Respondent.
Brief Facts-
The Plaintiff filed a Suit claiming ownership of a property inherited from her grandfather, Appaiahanna, through her mother, Gangamma. She alleged that after the property became vacant in 2003 as the building collapsed due to heavy rains, the defendants tried to interfere with her possession. Defendant No.2 claimed Gangamma had gifted the property to him which he sold to Defendant No.1. The trial Court dismissed the suit, validating the gift deed. On appeal, the First Appellate Court remitted the case and ruled that certified copies of the deeds were insufficient proof, and further examination was needed. Hence, the present Appeal.
The Court said that the contention of the Plaintiff that defendants are strangers to the property is incorrect.
The Court noted that the requirement to invoke Section 90 of the Indian Evidence Act is that, the document is in the handwriting of the executant.
“In the case on hand, since the original gift deed is not produced before the Court, plaintiff lost his chance to question the genuineness and veracity of the gift deed as the Trial Court and the parties did not know whether the gift deed was in the hand writing of Gangamma.”, the Court noted further.
The Court also said that Gangamma has subscribed her left hand thumb impression on the gift deed therefore, presumption as is available under Section 90 of the Indian Evidence Act could not have been per se made applicable so as to deny the demand for the proof of gift deed.
Accordingly, the Court dismissed the Appeal.
Cause Title: H Mahadev v. KN Rajamma (Neutral Citation: 2024:KHC:34377)
