CIVIL REVISION NO.3987 OF 2006 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 01 , 2008 Balbir Singh Wasu .....Petitioner VERSUS Lakhbir Singh Wasu (died) through his L.Rs and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. J. S. Wasu, Advocate, for the petitioner. Mr. Puneet Jindal & Mr. Jaswinder Singh, Advocates, for the respondents. **** RANJIT SINGH, J. The petitioner has challenged order dated 9.6.2006 passed by Additional District Judge, Chandigarh, allowing certain documents to be exhibited and admitted in evidence. The objection of the petitioner is that these documents have been admitted and exhibited without these having been formally proved and, thus, the impugned order is alleged to be against the provisions of the Indian Evidence Act. The petitioner and the respondents are closely related to CIVIL REVISION NO.3987 OF 2006 :{ 2 }: each other. They are bitterly fighting over the property left by Harnam Singh Wasu, a senior counsel of this Court. The dispute relates to the wills dated 5.7.1992 and 8.5.1988 allegedly executed by late Harnam Singh Wasu. The petitioner is the eldest surviving son of the testator and is contesting the wills which were set up by late Lakhbir Singh Wasu who died during the pendency of the suit and is now represented by his L.Rs, mainly his wife, Smt.Malvinder Kaur. The defendants while giving their evidence sought to exhibit various documents on record including these two wills. The wills were marked as mark A and B respectively. The other documents were marked from Ex.P1 to Ex.P38. The cross-examination of the witnesses is yet to take place. The endorsement on these documents has been made without giving any chance to the petitioner to raise objection. An application for de-exhibiting certain documents was thereafter filed and the prayer made in the application was pressed in the light of law laid down in the case of Girdhari Lal Vs. Ritesh Mahajan and another, 2005 (4) RCR (Civil) 349. This application was taken up for hearing on 23.2.2006 and the Trial Court decided to defer the decision on the objection of the petitioner till the time of final arguments. The petitioner impugned this order by filing Civil Revision No.1250 of 2006, which was finally allowed by this Court on 8.5.2006. The operative part of the order is reproduced below:- “...........In view of the discussion held above, it is held that the trial court should decide the objection regarding the admissibility and mode of proof of documents referred to in the affidavits as the court cannot postpone it for being CIVIL REVISION NO.3987 OF 2006 :{ 3 }: decided at the time of final arguments. Accordingly, the impugned order dated 23.2.2009 is set- aside and the learned trial court is directed to decide the admissibility and mode of proof of the documents sought to be exhibited in the affidavits containing examination in chief of the witnesses of the defendants.” Thereupon, the matter was again taken up by the Trial Court and considering the objections raised by the petitioner and reply thereto, the Court has held certain documents to be rightly admitted in evidence and has accordingly marked them exhibits. Certain documents, however, have been held to be not proved and accordingly held not to be admissible in evidence. The petitioner has now impugned the said order through the present revision petition. Learned counsel for the petitioner has mainly raised grievance in regard to exhibits P5, P6, P13, P14, P29, P37 and P38. His submission further is that majority of documents have been marked as exhibits, and held admissible in evidence on the ground that these documents are per-se admissible, which is legally not sustainable. On the other hand, learned counsel for the respondents, Mr.Puneet Jindal, would contest the submissions made by counsel for the petitioner. The counsel would submit that each document has been considered and decided by the Court and there is nothing legally objectionable in the impugned order, whereby the documents which were not sufficiently proved or established, have been held to be inadmissible in evidence. Another point of significance, which is made by counsel for the respondents, is that the trial is still in CIVIL REVISION NO.3987 OF 2006 :{ 4 }: progress and the respondents are to be cross-examined. They would have an opportunity to lead their evidence and a chance to prove the documents and contents thereof and hence, it is premature at this stage to say that these documents be de-exhibited. The counsel would rather contend that this petition is premature. Since this Court had required the Trial Court to decide and determine the admissibility aspect of the documents at this stage, the challenge raised by the petitioner would require consideration. Needless to mention that the right of the respondents to prove these documents and then to ask for establishing the same on record would always remain open and can not be taken away or curtailed in any manner. Let us now see the objection taken by the petitioner in regard to admissibility of the documents in evidence. The first objection by the counsel for the petitioner is regarding documents Exhibits P5 and P6. These are letter and affidavit allegedly executed by testator, since deceased, in the presence of PW1 Lakhbir Singh (respondent No.1, who is also no more). The signatures on these documents were identified by PW1, the testator being his father and he having seen him signing or writing letters in the normal course of his business in his life. The Court has accordingly found that the signatures appended on these documents by late Harnam Singh stood proved. These documents have accordingly been held admissible in evidence. There is no finding that these documents are being admitted being per-se admissible. Document can be proved by various methods. Ordinarily CIVIL REVISION NO.3987 OF 2006 :{ 5 }: handwriting and signatures can be proved by calling a person as a witness who wrote it, signed it or saw it being written or signed or who is qualified to express an opinion as to the handwriting or signatures in terms of Section 47 of the Indian Evidence act or as an expert under Section 45 of the said Act,. The document can also be proved by comparing handwriting under Section 73 of the Act or by admission of the person against whom it is tendered. As such, one of the modes permissible to prove the document is under Section 47 of the Indian Evidence Act. This Section permits evidence in regard to an opinion of a person who is acquainted with the signatures or handwriting of the person by whom the document is supposed to be written or signed or if it was written or signed by said person is found to be a relevant fact. In terms of the explanation given under this Section, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. The witness through whom these documents were exhibited on record was son of the late testator. It is revealed that testator as well as the witnesses were practicing advocates. A son is bound to be acquainted with the handwriting of his father as he would have seen his father write and sign on numerous occasions in the course of his life. Since PW1 has identified the signatures on Exhibits P5 and P-6 which are letter and CIVIL REVISION NO.3987 OF 2006 :{ 6 }: affidavit signed by late testator, they can certainly be admitted in evidence. It would always be open for parties to contest the value to be attached to this piece of evidence. The question here only to be seen is with regard to admissibility of the documents in evidence and nothing more. No viable objection is seen in the approach adopted by the Court in exhibiting these documents on record. The next objection is in regard to documents exhibits P13 and P14. These are certified copies of the orders passed by Claim Officer, Jalandhar. These documents have been held to be admissible in evidence on the ground that these are certified copies of the orders passed by competent authority in discharge of official duties and are official documents. These documents have been held to be per-se admissible in evidence. The learned counsel for the petitioner did make an attempt to make out a case that these documents are not certified copies of the orders passed by the Claim Officer but could not substantiate his submissions. Certified copy of the order passed by competent authority is rightly held per-se admissible in evidence. There would not be any other mode to prove such a document. Certified copy of the judicial order is accepted and is per-se admissible. I accordingly do not find any infirmity in the view taken by the Court in holding these documents admissible in evidence. Exhibit P29 is again a letter written by Harnam Singh Wasu. The plaintiff-respondent being son of the testator was well within his competence to prove the signatures of his father in terms of the provisions of Section 47 of the Indian Evidence Act as he was CIVIL REVISION NO.3987 OF 2006 :{ 7 }: well acquainted with the handwriting and signatures of his late father. The next objection is in regard to document, Exh.P37, which is a true copy of the order passed by Income-tax Officer on 8.7.1962. This document has been admitted on record being 30 years old and, thus, held admissible in evidence. As per Section 90 of the Evidence Act where any document purporting or proved to be 30 years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signatures and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting and in case of a document executed or attested, then it was duly executed and attested by the person by whom it purports to be executed and attested. As per this Section, presumption in regard to genuineness of a document is required to be made. Reference in this regard can be made to the case of Sri Lakhi Baruah and others Vs. Sri Pama Kanta Kalita and others, AIR 1996 Supreme Court 1253. Section 90 of the Evidence Act is founded on necessity and convenience because it is otherwise difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of 30 years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the document in question is produced from proper custody. It is, however, the CIVIL REVISION NO.3987 OF 2006 :{ 8 }: discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons. The presumption that can be drawn relates to execution of the documents that is its' signatures, attestation etc. This rule of presumption is to be applied with great caution and where circumstances throw suspicion on genuineness of document, no presumption under Section 90 can be drawn. Though presumption under Section 90 does not apply to copy or certified copy even though 30 years old, but if foundation is laid for admission of secondary evidence and such copy is produced from proper custody, then it can be presumed to be genuine. Moreover, certified copy of judicial order or order of this nature is the only copy available for being proved or produced. Nothing much was said before me to suspect the genuineness of a document. Nothing appears to have been stated before the Court while it was to exhibit the same in exercise of discretion to adduce the document being 30 years old. Even now no reasons have been assigned to doubt the genuineness of the document, which would require efforts from the respondents to formally prove the document instead of seeking support from Section 90. It has not been disputed before me that the document is 30 years old. The presumption can also arise in respect of a certified copy when it is found to be 30 years old if foundation is laid for admission. The learned counsel for the petitioner has referred to the case of Harihar Prasad Singh and another Vs. Deonarain Prasad and others, AIR 1956 SC 305 to say that presumption under Section 90 CIVIL REVISION NO.3987 OF 2006 :{ 9 }: can be raised only with reference to original documents and not for the copies thereof. The document in question is not a copy but a certified copy of an order passed by Income-tax Officer. Judicial notice can be taken of the fact that such order passed by the officer like Income-tax Officer are not issued in original and certified copy of such orders are only made available to the parties. There is no allegation that this certified copy has not come from the proper custody. In view of the observations made in the case of Sri Lakhi Baruah (supra), such certified copy would be admissible in evidence as it can not be said that there is any original copy of the said document. The Trial Court has, thus, rightly held this document to be admissible in evidence on the basis that it is 30 years old by drawing a presumption that can be so drawn on the basis of Section 90 of the Indian Evidence Act. The last objection raised by counsel for the petitioner pertains to will, Exhibit P39. The execution of the will is stated to have been proved by the testimony of Dr.Bhajan Singh (PW3), who was one of its attesting witness. For admissibility of will as an evidence, the testimony of attesting witness and that of the plaintiff- respondents who would be in a position to identify the signatures appearing thereon would appear sufficient. There possibly can not be other mode to prove the will except by examining one of the testator who is now surviving, other having passed away. One of the attesting witness to this will was a retired Chief Justice of this Court, a fact which in itself would be significant. In view of the above discussion, I do not find any infirmity CIVIL REVISION NO.3987 OF 2006 :{ 10 }: in the impugned order, which may call for interference in exercise of revisional jurisdiction. The revision petition is accordingly dismissed. August 01,2008 ( RANJIT SINGH ) khurmi JUDGE