Section 92 BSA: Presumption as to 30-Year-Old Documents

Section 92 BSA explains when courts may presume the genuineness of old documents produced from proper custody.

Introduction

Section 92 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the presumption as to documents thirty years old. It allows courts to presume that the signatures and handwriting appearing in qualifying old documents are genuine and that the documents were duly executed and attested, where applicable.

The provision is particularly important in property disputes, inheritance matters, land-title litigation and other cases involving old deeds or historical documents. Since it may be difficult to locate the original executants or witnesses after several decades, the law permits a limited evidentiary presumption when the document’s age and custody satisfy the statutory requirements.

Section 92 BSA corresponds to Section 90 of the Indian Evidence Act, 1872. The BSA also expressly provides that the Explanation to Section 80, which defines proper custody, applies to Section 92.

Section 92 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

92. 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 purports 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.

Explanation.—The Explanation to section 80 shall also apply to this section.

Illustrations

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody shall be proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody shall be proper.

(c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody shall be proper.”

Explanation of Section 92 BSA

Section 92 enables courts to draw a presumption concerning certain formal features of an old document. Its application depends on three principal requirements:

1. The document must purport to be or be proved to be at least thirty years old.
2. It must be produced from custody that the court considers proper in the circumstances.
3. The court must decide whether to exercise its discretion to draw the statutory presumption.

When these conditions are satisfied, the court may presume the genuineness of the signature and handwriting described in the section and, where applicable, due execution and attestation.

1. The document must be thirty years old

The document must purport to be thirty years old or its age must be proved. Merely describing a document as old does not satisfy the statutory requirement.

The thirty-year period is a substantive requirement. In Om Prakash v. Shanti Devi, (2015) 4 SCC 601, the Supreme Court considered the calculation of this period under the predecessor provision and held that the statutory period could not be relaxed merely because the document fell short by a few months.

The Court explained that the period is reckoned backwards from the point at which the document is tendered in evidence or exhibited and its genuineness first becomes a matter for proof.

Key point: A document that is twenty-nine years old does not qualify merely because it is close to the thirty-year threshold.

2. The document must come from proper custody

Age alone is insufficient. The document must also be produced from custody that the court considers proper.

The Explanation to Section 80 BSA applies to Section 92. It provides that a document is in proper custody when it is in the place where, and looked after by the person with whom, it is required to be kept. However, custody is not improper if the document is proved to have had a legitimate origin or the circumstances make that origin probable.

Proper custody does not necessarily mean that the document must be held by the person who originally executed it. The court examines the nature of the document, its history and the circumstances in which it has been preserved.

For example, an old title deed kept by a family member for safekeeping may be produced from proper custody if the surrounding circumstances support its legitimate origin.

3. Presumption regarding signature and handwriting

Section 92 allows the court to presume that a signature and any other part of the document purporting to be in a particular person’s handwriting is in that person’s handwriting.

This is significant because the original writer or signatory may no longer be available to testify, and contemporaneous witnesses may be difficult to locate.

The presumption helps address the evidentiary difficulty created by the passage of time. However, it is not an automatic finding that every statement recorded in the document is true.

Also Read: Section 91 BSA: Presumption as to Due Execution of Documents Not Produced

4. Presumption of due execution and attestation

Where the old document is one that was executed or attested, the court may presume that it was duly executed and attested by the persons by whom it purports to have been executed and attested.

This can be particularly relevant to old conveyances, mortgage deeds and other instruments relied upon in property litigation.

Nevertheless, the court must consider the nature of the document and any special legal requirements governing it. Section 92 does not eliminate every requirement for proving a document under other applicable laws.

5. Meaning of “may presume”

Section 92 uses the expression “may presume”. Under Section 2 of the BSA, this gives the court discretion either to regard the relevant fact as proved unless and until it is disproved or to require further proof.

Therefore, the presumption is discretionary and rebuttable, rather than conclusive.

The court may consider the document’s condition, age, custody, provenance and any contrary evidence before deciding whether to draw the presumption.

What Is Proper Custody Under Section 92 BSA?

Proper custody is an essential part of the statutory rule. The Explanation to Section 80 BSA applies to Section 92 and provides the relevant standard.

The following examples illustrate how custody may be assessed:

Situation	Whether custody may be proper
An owner produces old title deeds relating to property that has long been in their possession	Yes, as illustrated in Section 92
A mortgagee produces old deeds relating to mortgaged property	Yes, as illustrated in Section 92
A person produces deeds deposited with them by the person entitled to the property for safekeeping	Yes, as illustrated in Section 92
A stranger produces an old deed with no explanation of how it came into their possession	The court must examine the circumstances; age alone does not establish proper custody
A document is produced from custody with a demonstrably legitimate origin	The custody may be considered proper even if it is not the most obvious or usual place of preservation

The examples in the statute demonstrate that proper custody is assessed in context. A court should not reject a document merely because it is held by someone other than the current owner, if the circumstances establish a legitimate origin.

Illustration of Section 92 BSA

Suppose A files a suit concerning ownership of ancestral land and produces a registered conveyance executed more than thirty years earlier. The deed has been preserved among the family’s property records, and the circumstances explain how it came into A’s possession.

If the court considers the custody proper and the other statutory conditions are met, it may presume that the signatures and handwriting purporting to be those of the relevant persons are genuine and that the deed was duly executed and attested, where applicable.

However, the presumption does not automatically establish that A is the present owner of the land. The court must still consider the document’s contents, the chain of title, subsequent transactions and other relevant evidence.

Important Case Laws on Section 92 BSA

Section 92 corresponds to Section 90 of the Indian Evidence Act, 1872. The following Supreme Court decisions interpreting the predecessor provision are relevant to understanding the corresponding rule under the BSA.

1. Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357

The Supreme Court discussed the presumption applicable to documents thirty years old under Section 90 of the Indian Evidence Act, 1872.

The Court explained that the provision is based on necessity and convenience because proving old signatures, handwriting and execution may be difficult after a long passage of time.

The statutory conditions concerning age and proper custody remain important.

Legal principle: A qualifying old document produced from proper custody may attract the statutory presumption, but the court must examine whether the requirements of the provision are satisfied.

2. M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490

The Supreme Court considered the application of the presumption concerning old documents in the context of a will.

The Court held that the presumption for documents thirty years old under Section 90 of the former Evidence Act does not dispense with the special requirements for proving a will. A will must be proved in accordance with Section 63(c) of the Indian Succession Act, 1925, read with the applicable requirement of proof under Section 68 of the former Evidence Act.

Legal principle: The presumption for old documents cannot be used to bypass special statutory requirements governing the proof of a will.

3. Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687

The Supreme Court considered the legal requirements governing the proof and validity of a will and the limitations of relying on general presumptions to establish testamentary documents.

The decision is relevant to the principle that the statutory rules governing wills must be satisfied independently of the age of the document.

Legal principle: A party relying on a will must satisfy the applicable legal requirements for proving its execution and attestation; the age of the will alone does not dispense with those requirements.

4. Om Prakash v. Shanti Devi, (2015) 4 SCC 601

The Supreme Court considered the thirty-year requirement under Section 90 of the former Evidence Act.

Also Read: Section 56 BSA: Proof of Contents of Documents

The Court clarified that the thirty-year period is calculated backwards from the point at which the document is tendered in evidence or exhibited and its genuineness first becomes a matter for proof. It also held that the statutory period cannot be relaxed merely because the document falls short by a few months.

Legal principle: The thirty-year threshold is a statutory requirement and must be satisfied before the presumption can be invoked.

5. Union of India v. Ibrahim Uddin, (2012) 8 SCC 148

The Supreme Court considered the scope of the presumption applicable to old documents.

The Court clarified that the presumption under the predecessor provision does not extend to the correctness of statements contained in the document.

Legal principle: The presumption concerns matters such as handwriting, signature and due execution or attestation. It does not automatically establish the truth or correctness of every statement recorded in the old document.

Important note: These decisions interpreted Section 90 of the Indian Evidence Act, 1872, rather than Section 92 BSA directly. They remain relevant to the corresponding statutory principle, subject to the wording of the BSA and the law applicable to the proceedings.

Does Section 92 BSA Apply to Wills?

Section 92 should not be treated as a substitute for the statutory requirements governing the proof of a will.

Under Section 63(c) of the Indian Succession Act, 1925, a will must be attested by two or more witnesses in the prescribed manner. Section 68 of the Indian Evidence Act, 1872 contained the corresponding requirement for proving a will through an attesting witness, subject to its terms and applicable law.

The Supreme Court in M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490, recognised that the presumption for documents thirty years old does not dispense with the special requirements for proving a will.

Accordingly, a will does not become duly proved merely because it is more than thirty years old and comes from proper custody. The applicable statutory requirements governing proof of wills must still be satisfied.

Difference Between Section 91 and Section 92 BSA

Sections 91 and 92 address different circumstances.

Basis	Section 91 BSA	Section 92 BSA
Subject	Presumption as to due execution of documents not produced	Presumption as to documents thirty years old
Main condition	A document is called for but not produced after notice to produce	A document purports or is proved to be thirty years old and comes from proper custody
Nature of presumption	Mandatory when statutory conditions are satisfied	Discretionary
Matters covered	Attestation, stamping and execution in the manner required by law	Handwriting, signature and due execution and attestation, where applicable
Corresponding provision under the former Evidence Act	Section 89	Section 90

Section 91 focuses on the failure to produce a document after notice. Section 92 focuses on the age and custody of a document that is produced.

Difference Between Section 92 and Section 93 BSA

Section 92 concerns documents thirty years old, whereas Section 93 concerns electronic records five years old.

Basis	Section 92 BSA	Section 93 BSA
Subject	Documents thirty years old	Electronic records five years old
Age requirement	Thirty years	Five years
Custody	The court must consider the custody proper	The court must consider the custody proper
Main presumption	Handwriting, signature and due execution or attestation, where applicable	The electronic signature purporting to belong to a particular person was affixed by that person or someone authorised by them
Nature	Discretionary	Discretionary

The two provisions address different evidentiary problems and should not be confused.

Key Points for Law Students and Judiciary Aspirants

• Section 92 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the presumption as to documents thirty years old.
• It corresponds to Section 90 of the Indian Evidence Act, 1872.
• The document must purport or be proved to be thirty years old.
• It must be produced from custody that the court considers proper.
• The court may presume the genuineness of the signature and handwriting described in the section.
• In the case of a document executed or attested, the court may presume due execution and attestation.
• The words “may presume” make the presumption discretionary and rebuttable.
• The presumption does not automatically establish the truth of the document’s contents.
• The age of a will does not dispense with the special legal requirements for proving it.
• Om Prakash v. Shanti Devi, (2015) 4 SCC 601, is important for the thirty-year calculation, while Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, clarifies the limited scope of the presumption.

Frequently Asked Questions (FAQs)

1. What is Section 92 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 92 permits a court to presume the genuineness of the signature and handwriting appearing in a document thirty years old and, where applicable, its due execution and attestation, provided it is produced from custody considered proper by the court.

2. Which section of the Indian Evidence Act corresponds to Section 92 BSA?

Section 92 BSA corresponds to Section 90 of the Indian Evidence Act, 1872.

3. Is the presumption under Section 92 mandatory?

No. The provision uses “may presume”, which gives the court discretion to draw the presumption or require further proof.

4. What is proper custody under Section 92 BSA?

Proper custody is assessed under the Explanation to Section 80 BSA, which also applies to Section 92. It generally concerns the place and person with whom the document would naturally be kept, while allowing other custody where its legitimate origin is established or probable.

5. Does Section 92 prove that the contents of an old document are true?

No. The presumption concerns handwriting, signatures and due execution or attestation, where applicable. It does not automatically establish the correctness of every statement in the document.

6. Can the presumption under Section 92 apply to a will?

The presumption under Section 92 cannot replace the special statutory requirements for proving a will. The requirements of the applicable succession and evidence laws must still be satisfied.

7. How is the thirty-year period calculated?

In Om Prakash v. Shanti Devi, (2015) 4 SCC 601, the Supreme Court explained the calculation under the predecessor provision. The period is reckoned backwards from the point at which the document is tendered in evidence or exhibited and its genuineness first becomes a matter for proof.

8. Can a thirty-year-old document be rejected despite proper custody?

Yes. The presumption is discretionary and rebuttable. The court may consider contrary evidence and other legal requirements applicable to the document.

Conclusion

Section 92 of the Bharatiya Sakshya Adhiniyam, 2023 provides a practical evidentiary rule for old documents. When a document is at least thirty years old and is produced from custody that the court considers proper, the court may presume the genuineness of the handwriting and signature described in the provision and, where applicable, due execution and attestation.

The provision is particularly useful in disputes involving historical deeds and property records, where direct evidence may no longer be available. However, the presumption is discretionary and limited in scope. It does not establish the truth of every statement in the document or dispense with special legal requirements, such as those governing the proof of a will.

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