Legal Presumption Applies to Documents More Than 30 Years Old Without Calling Witnesses: High Court
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| Supreme Court of Bangladesh |
The court also held that where the sale price of immovable property was less than Tk 100, the sale could, under the law applicable at the time, be completed through delivery of possession even without registration.
A bench comprising Justice Sheikh Abdul Awal and Justice A.K.M. Rabiul Hasan of the High Court Division made these observations in the judgment in First Appeal No. 721 of 2018. The judgment was delivered on September 10, 2026. The case was Abdul Razzaque Bhuiyan and Others v. Abdul Hossain Khan and Others. A full copy of the judgment was published on the Supreme Court website on October 18, 2026.
Facts of the Case
The disputed property was 21 percent of land in C.S. Plot No. 1246 under C.S. Khatian No. 77 in a mouza in Munshiganj. The plaintiffs claimed that the original owner of the land was Isab Khan. After his death, his two sons and one daughter inherited the property, and their successors subsequently acquired ownership. However, as the names of some of them were omitted from various surveys, they filed a suit for declaration of title.
The defendants, on the other hand, claimed that in 1918 Isab Khan sold the 21 percent of land to Amir Bhuiyan alias Felu Bhuiyan for Tk 85 and delivered possession to him. Subsequently, a mortgage deed was executed in 1920 and a kabuliyat deed in 1926 concerning the land. SA and RS khatians were also prepared in the names of the defendants’ predecessors.
The plaintiffs alleged that the 1918 sale deed was forged and fabricated. The defendants, however, claimed ownership on the basis of long-standing possession, old documents, and government records.
High Court’s Observations
The High Court found that the defendants had produced several old documents, including a registered heba-bil-ewaz deed from 1924 and documents from 1918, 1920, and 1926. The 1924 deed showed that Isab Khan’s son, Abdul Aziz, had died during his father’s lifetime. Therefore, under the Muslim inheritance law applicable at the time, Abdul Aziz’s son, Julmat Khan, was not entitled to inherit a share directly from his grandfather.
The court further observed that the 1918 deed stated the value of the land as Tk 85, which was below the registration threshold of Tk 100 applicable at the time. Possession had also been delivered under the deed. Therefore, under Section 54 of the Transfer of Property Act, 1882, the sale could legally have been completed through delivery of possession even without registration.
Application of Section 90 of the Evidence Act
An important aspect of the judgment concerns the court’s interpretation of Section 90 of the Evidence Act, 1872. The High Court held that when a document more than 30 years old is produced from proper custody, the court may draw a legal presumption regarding its execution and authenticity. Consequently, it is not mandatory to formally produce the attesting witnesses to prove the execution of such an old document.
The court also referred to the principle laid down in Additional Deputy Commissioner (Revenue) v. Md. Riazzuddin P.K. and Others, 5 BLC (AD) 76. It was held there that when a document more than 30 years old is produced from proper custody, its authenticity may be presumed under Section 90 of the Evidence Act.
In the present case, the documents from 1920 and 1926 were compared with the official registration volumes or balam books. The court observed that a minor discrepancy in the date or in the Bengali and English dates in a document nearly a century old would not, by itself, establish that the document was forged. Such a minor defect does not rebut the legal presumption under Section 90 of the Evidence Act.
Suit for Declaration of Title Alone Not Maintainable
The High Court further held that if the plaintiffs are not in possession of the land and have the opportunity to seek a further remedy, a suit seeking only a declaration of title cannot be maintained. Under the proviso to Section 42 of the Specific Relief Act, 1877, a suit is legally barred if the plaintiff fails to seek the necessary consequential relief.
According to the court, the plaintiffs had been out of possession of the land for a long period and challenged the transactions of 1918 and 1920 only in 2009, nearly 90 years later. They did not seek any relief for recovery of possession. For this reason alone, the suit was not legally sustainable.
Judgment
Ultimately, the High Court held that the trial court had failed to properly assess the facts, circumstances, and evidence of the case and had issued a decree that was not legally sustainable. Accordingly, First Appeal No. 721 of 2018 was allowed.
As a result, the judgment and decree dated January 8, 2017, passed by the Joint District Judge, Munshiganj, in Title Suit No. 187 of 2009 were set aside. The appeal was allowed on contest against defendants Nos. 1–14 and ex parte against the remaining defendants.
BD Law Post/Masum
