A 30-year-old mortgage deed from proper custody may be presumed duly executed without attestor testimony.

The plaintiff claimed that Veeraiya Thevar mortgaged 66 cents of land to her mother, Kunjarathammal, under a registered mortgage deed dated 8 May 1959 (Ex.A1), and that her mother took possession and cultivated the land. After her mother’s death in 1999, the plaintiff claimed to have continued in possession.

The defendants denied the mortgage and possession, relied on revenue records, and asserted that the property had been allotted to the first defendant in an oral partition and later settled on the second defendant. The Trial Court dismissed the plaintiff’s suit for declaration and permanent injunction, and the First Appellate Court affirmed that decision. The plaintiff appealed under Section 100 CPC.

1. Whether Ex.A1, a mortgage deed more than 30 years old, could be accepted without examining an attesting witness, having regard to Sections 68 and 90 of the Indian Evidence Act, 1872.

2. Whether the discharge of the earlier mortgages referred to in Exs.A5 and A6 was proved, or could be inferred from production of the original deeds.

3. Whether the evidence of D.W.1 was legally acceptable despite his not appearing for cross-examination, and whether an adverse inference should be drawn against the defendants.

4. Whether the plaintiff had established possession in the absence of legally acceptable contrary evidence.

5. Whether the First Appellate Court’s judgment was sustainable despite the alleged non-compliance with Order XLI Rule 31 CPC.

Section 90 of the Indian Evidence Act, 1872 permits—but does not require—the court to presume the genuineness, execution and attestation of a document that is at least 30 years old and produced from proper custody.

Article 61 of the Limitation Act, 1963 prescribes 30 years for a mortgagor’s suit to redeem a mortgage.

The Court also applied the principle that revenue entries, standing alone, do not conclusively establish title, and that possession may be assessed from the evidence as a whole.

Although the substantial questions referred to Sections 68 and 114 of the Evidence Act and Order XLI Rule 31 CPC, the judgment did not set out a distinct analysis of those provisions.

The Court considered Ex.A1, together with Exs.A5 and A6, as original old documents produced from the plaintiff’s custody, and noted that their recitals consistently referred to the earlier mortgages and the 1959 mortgage in favour of Kunjarathammal.

It held that, in the circumstances, the non-examination of Ex.A1’s attestors was not by itself fatal, since the deed was registered, more than 30 years old and produced from proper custody; the presumption under Section 90 remained subject to its statutory requirements.

The Court also relied on P.W.2’s evidence that he cut trees on the land, considered alongside the documents, as support for the plaintiff’s possession.

By contrast, the defendants produced no convincing evidence of the alleged oral partition or allotment, and the revenue entries did not independently establish their title.

The Court therefore found the mortgage and the plaintiff’s case regarding possession sufficiently established.

It set aside the judgments and decrees of both lower courts; no costs were awarded.