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TMI Blog2012 (7) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee of the property and had parted with possession of the property to the Appellant on a nominal licence basis. The parties are closely related to each other - being brothers-in-law since the Appellant/Defendant was the husband of the Plaintiff's sister. The Plaintiff pleaded that it had been agreed between them that as and when required by the Plaintiff the Appellant would vacate the property. However, despite the Plaintiff's repeated requests the Appellant did not accede thereto; accordingly, the aforesaid suit came to be filed. Whilst admitting that he had initially been a licencee of the Respondent, the Appellant pleaded in his Written Statement that on 15.05.1970 the Respondent had executed a Gift Deed in his favour, thereby making him the owner of the property. The Appellant/Defendant also claimed that the Gift Deed had been registered in and by the Office of the Sub Registrar, Patiala, on 18.05.1970. In Replication, the Respondent- Plaintiff has denied execution of the Gift Deed saying that because of close relationship the Defendant may have obtained his signatures by misrepresentations, essentially admitting his signature on that document. 4. Concurrent findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to render such an origin probable." This Explanation applies also to section 81. 6 The due execution and attestation of this Gift Deed is the sole point in issue before us. The Appellant has rested his case on the favourable presumption contained in Section 90 of the Evidence Act i.e. that the Gift Deed being thirty years old should be taken as having been duly executed and attested. The Appellant seems to have made little or no endeavour to prove the Gift Deed without the advantage of this presumption. Under Section 90, before any question of presuming a document's valid execution can emerge, the document must purport and be proved to be thirty years old. The law surrounding the date of computation of the elapse of thirty-years stands long-settled, since the verdict of the Privy Council in Surendra Krishna Roy v. Mirza Mahammad Syed Ali Mutawali AIR 1936 PC 15, which held that the period of thirty years is to be reckoned, not from the date upon which the Deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the province of proof. Generally speaking, although the date on which the document has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the attesting witnesses to the Gift Deed. It has also not been clarified whether the attesting witnesses or either of them was also witness before the Sub-Registrar when the Gift Deed was accorded registration. It should be noted that law does not mandate that the attesting witnesses to a document must also be present at the time of its registration under the Registration Act. Reasons remain recondite as regards this remissness or even as to their not being 'found' as postulated in Section 69, although there is a vague reference to both of them having died by the time the Defendant/Appellant had started recording his evidence. Section 69 provides for "proof where no attesting witness found". It is at once apparent that this provision anticipates a reasonable anxiety emerging out of the peremptoriness of Section 68, in that it addresses, inter alia, a situation where none of the attesting witnesses to a document (a gift deed, in this case) are alive at the time of the curial investigation thereof. Not leaving litigants forlorn for proof under Section 68, Section 69 places emphasis on handwriting(s) of the putative deceased or the 'not found' attestator(s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e did, prove the date on which the Gift Deed was presented for registration, i.e. 18.5.1970, thereby proving to that extent the antiquity of that Deed. If it crossed the thirty year period the Defendant may have succeeded in claiming the advantage of the presumption contained in Section 90 unless the relevant date would be the date of the recording of his statement. If the first attempt of the Defendant/Appellant before us, to prove the Gift Deed occurred on 21.7.2000, then we think that to be the proper and appropriate date from whence the thirty year period ought to be counted backwards. It also appears to us to be facially plain that the Clerk from the Office of the Sub-Registrar could only testify as to whether the document sought to be proved is in actuality was the one which was, in fact, duly registered, by producing the original records or if permissible by Rules by tendering a certified copy thereof. This witness could not possibly have said anything more. In the event, it would have been sagacious for the Defendant to have delayed the recording of his own statement beyond 18.5.2000 so as to inter any contention that the Gift Deed had been tendered in evidence after its at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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