Presumption Under Section 90 of the Evidence Act Applies to Documents Over 30 Years Old: High Court

The High Court has held that documents more than 30 years old may enjoy a presumption of due execution under Section 90 of the Evidence Act, 1872, and that a registered deed cannot be disbelieved merely on the basis of oral testimony without sufficient supporting evidence.

The High Court Division of the Supreme Court of Bangladesh has discharged a Rule in a civil revision concerning the validity of two registered deeds executed in 1958, observing that the statutory presumption under Section 90 of the Evidence Act, 1872, applied to the disputed documents. The Court also observed that oral evidence alone could not establish that the deeds had not been duly executed and registered when the opposing party failed to produce appropriate expert evidence to support that contention.

The judgment was delivered by Mr. Justice Md. Shohrowardi in Nurul Hoque alias Noor Mohammad Howlader v. Munshi Md. Isahak Ali Howlader and others, Civil Revision No. 1779 of 2001. The matter was heard on June 21, 22 and 23, 2026, and the judgment was delivered on July 19, 2026.

Background of the Dispute:

The dispute arose out of competing claims over land recorded under S.A. Khatian Nos. 711 and 712 in Mouza Lohalia, Patuakhali Sadar.

The petitioners claimed title to a total of 96 decimals of land. Their claim included 46 decimals allegedly purchased from Sobahan by a deed dated December 13, 1993, and 50 decimals purchased from Lalbaru Bibi by a deed dated June 11, 1975. Their names were subsequently recorded through a mutation proceeding.

On the other hand, the opposite parties claimed that they had purchased 34 decimals and 13 decimals of land respectively through two registered deeds, Nos. 4554 and 4555, both dated May 13, 1958, executed by Sobahan and Hakim Ali. They further claimed that they had taken possession of the land after purchase and had regularly paid land revenue.

The petitioners instituted Title Suit No. 112 of 1995, challenging the two deeds of 1958 as illegal, collusive, fraudulent and not binding upon them. They also sought relief concerning the khatian prepared in favour of the opposite parties.

The trial court dismissed the suit on November 3, 1997, holding, among other things, that the plaintiffs had neither sought a decree declaring their title nor prayed for cancellation of the disputed deeds. The appellate court affirmed that decision on October 21, 1999, leading to the filing of the civil revision before the High Court Division.

High Court’s Observations on the Deeds of 1958

The High Court observed that the plaintiffs had not specifically denied in their plaint that Sobahan and Hakim Ali had executed and registered the deeds dated May 13, 1958. Nor had the plaintiffs sought any relief for cancellation of those deeds. In these circumstances, the Court held that the disputed deeds had been executed and registered in favour of the opposite parties.

The Court further observed that, upon issuance of a certificate under Section 60 of the Registration Act, 1908, it may be presumed that the deed was duly registered in accordance with law and that the relevant registration formalities were complied with. However, this presumption is rebuttable, and a party disputing the execution or registration of a deed may adduce appropriate evidence to establish the contrary.

In the present case, the disputed deeds were registered in 1958 and were therefore documents more than 30 years old. The Court held that the presumption under Section 90 of the Evidence Act, 1872, applied to the deeds. Accordingly, in the absence of sufficient evidence to the contrary, the deeds could be presumed to have been duly executed by Sobahan and Hakim Ali.

The Court also noted that although Sobahan, examined as P.W. 3, denied executing the disputed deeds, the plaintiffs had taken no steps to send the relevant left thumb impressions (LTI) to a handwriting expert for comparison with the LTI register maintained at the office of the concerned Sub-Registrar. The Court considered this omission significant in assessing the plaintiffs’ challenge to the authenticity of the deeds.

Documentary Evidence Prevails Over Oral Evidence

The High Court reiterated the settled proposition that documentary evidence will prevail over oral evidence in the circumstances of the case. It held that the oral testimony of Sobahan could not, without supporting expert opinion, establish that the registered deeds had not been executed and registered by him and his father, Hakim Ali.

The Court therefore declined to invalidate the registered deeds merely on the basis of the oral denial of their execution.

Subsequent Deed Could Not Confer Title

Another important aspect of the judgment concerned the legal effect of the subsequent deed executed in 1993.

The Court found that the deeds of 1958 had transferred the disputed land to the opposite parties. Consequently, Sobahan had no subsisting title to transfer the same land to the plaintiffs through the subsequent deed dated December 13, 1993. The Court therefore held that no title passed to the plaintiffs under the later deed in respect of the land already transferred in 1958.

The Court also observed that the plaintiffs’ mutation record had been cancelled in the relevant review proceeding. In such circumstances, they ought to have instituted a suit seeking a declaration of their title to the disputed land. Instead, they sought a declaration that the earlier deeds were not binding upon them without seeking a declaration of title.

The High Court held that the suit, in its existing form, was not maintainable in law.

Final Decision

Upon examining the evidence and the concurrent findings of the courts below, the High Court found no misreading or non-reading of material evidence and no perverse finding warranting interference in the revisional jurisdiction.

Accordingly, the Court found no merit in the Rule and discharged it. The interim order of status quo granted earlier was vacated, and there was no order as to costs.

Legal Significance

The judgment underscores the evidentiary significance of old documents under Section 90 of the Evidence Act, 1872. It also highlights the importance of producing appropriate evidence when challenging the execution of an old registered deed, rather than relying solely on oral denial.

At the same time, the statutory presumption is not conclusive: it may be rebutted by sufficient evidence. The decision also illustrates the importance of seeking appropriate declaratory relief and establishing title when contesting competing claims to immovable property.

BD LAW POST / Masum