Presumption U/S 90 Evidence Act Not Applicable To Certified Copies Of Gift Deed, Beneficiary Must Prove Claim Over Property: Karnataka HC

The Karnataka High Court has said that a beneficiary of a gift deed has to prove his title over the property received under such a deed by examining witnesses. It held that a presumption in his favour under Section 90 of the Evidence Act cannot be drawn based on producing certified copies of the deed.

Section 90 of the Evidence Act reads thus: Presumption as to documents thirty years old. Where 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 purport to be in the handwriting 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 persons by whom it purports to be executed and attested.

A single-judge bench of Justice V Srishananda upheld the order of the first appellate court which reversed the order passed by the trial court dated November 22, 2008, and remanded the suit filed by K N Rajamma back to the trial for reconsideration afresh.

The court said, “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.”

The plaintiff had claimed that she is the granddaughter of one Appaiahanna, who had only one daughter by the name of Gangamma who is her mother. It was stated that the property belonged to Appaiahanna and after his death, the same was succeeded by Gangamma being his only daughter. After the death of Gangamma, the plaintiff being the only daughter of Gangamma, succeeded to the property and also other properties of Gangamma.

In the month of July 2003, it was stated that the suit house collapsed on account of heavy rain. Thereafter, the property had become a vacant site. The defendants being utter strangers to the suit property, took advantage of the helplessness of the plaintiff and attempted to interfere with the possession of the suit property. Therefore, the suit for declaration and injunction came to be filed.

The trial court dismissed the suit holding that Gangamma had bequeathed the suit property along with land to the second defendant under a registered gift deed dated 26.02.1964, who subsequently had sold the property to defendant no 1, vide a registered sale deed.

In appeal, the first appellate court had reversed the order and held that the presumption raised by the Trial Court in favour of the defendants in respect of certified copies of the sale deed and gift deed respectively, by invoking Section 90 of the Indian Evidence Act is incorrect as they were not original copies.

Further, it was stated that the gift deed should not have been accepted only on the say of D.W.1 (Mahadev), without demanding proof of the gift deed by examining the attestor or the scribe.

The appellant contended that the Trial Court was justified in raising a presumption as is found in Section 90 of the Indian Evidence Act. Moreover, the beneficiary under the gift deed is no more, therefore expecting the proof of the gift deed is highly improbable and impermissible.

The respondents supported the appellate court order saying that secondary evidence was placed on record in the form of a certified copy and there was no foundation laid by the defendant to accept the secondary evidence especially when the very gift deed was in question.

Findings:

The bench on going through the records noted that the title in favour of Appaiahanna was not disputed by the parties to the suit and thus the relationship of the plaintiff with Gangamma having not been disputed, the only point that should have been taken note of by both the Courts was whether natural succession had been interfered by an alleged gift deed.

Then it said “The defendant (Mahadev) did not choose to examine any of the attestors to the gift deed nor its scribe. Plaintiff had no chance of questioning the veracity of the gift deed in the absence of original gift deed being produced and marked before the Trial Court.”

Observing that the requirement to invoke Section 90 of the Indian Evidence Act was that the document should be in the handwriting of the executant, the court said, “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 handwriting of Gangamma.”

Accordingly, the court dismissed the appeal and directed the trial court to expedite the hearing of the suit and dispose of the suit as early as possible, not later than 31st March 2025.

Appearance: Advocate G.S.Venkat Subbarao for Appellant.

Advocate Harish H.V for R1.

Citation No: 2024 LiveLaw (Kar) 397

Case Title: H Mahadev AND K N Rajamma & others

Case No: MISCELLANEOUS SECOND APPEAL No.24 OF 2019

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