1. The plaintiff sued the Hazra defendants for arrears of rent due for 2 bighas 8 cottahs from 1299 to Assar 1302, but with the permission of the Court he withdrew his suit because the defendants stated that they held the lands partly as tenants of the Pal defendants, mukuraridars, and partly (one plot) as rent-free. He has now sued all these persons for a declaration that those lands are his mal lands, and that the Pals have no mukurari right or title. He also asks for the money sued for as rent in the former suit and mesne profits up to the date of recovery of possession. The same defence is made by the Hazras and the Pal defendants. The Hazias deny that they are the tenants of the plaintiff, and that they have ever paid rent to him or his predecessors. The Pals state that they hold plot No. 4 as rent-free and the other lands as mukuraridars under the plaintiff, and they also state that the Hazra defendants are their tenants. In proof of their title as mukuraridars the Pals produced some old papers, and relied on the fact that those were produced in 1876 in a, suit for rent brought against them by the patnidar. The District Judge on appeal dismissed that suit on the ground that the plaintiff was not entitled to sue for rent on his specific share, and also because the evidence of one of the plaintiff's co-sharers satisfied him that the entire rent had been paid to the landlords jointly. In respect of these old papers the District Judge expressed dissent from the Court of first instance, which had pronounced them to be genuine, because they bore old dates, but he held that it was unnecessary to adjudicate upon them.
2. With the exception of plot No. 4, the lands are admittedly the mal lands of the plaintiff. The matter really in issue is the title set up by the Pal defendants. In this respect we have the fact that these defendants do not say that they have ever paid rent to the plaintiff, and the Munsiff has found that it is not proved that the Hazra defendants have ever paid rent or given a potta as alleged to the Pal defendants. The Munsiff found that the mukurari title had not been proved, and he accordingly held that the plaintiffs were entitled to a fair and equitable rent from the Hazra defendants. The plaintiff's claim in respect of plot No. 4 was dismissed.
3. The District Judge on appeal gave the plaintiff a decree in full He held that as the lands, except plot No. 4, were mal and the Hazra defendants were in possession, it was for them to, show that they were not liable for rent to the plaintiff, and he then proceeded to deal with the papers produced to prove a mukurari title with the Pal defendants. Those were a potta bearing date 1159 and an amalnama confirming the potta bearing date 1211. He observes that neither of these papers bears the signature of the executant; that they bear seals as to which there is no evidence; and he adds that before the documents could be accepted as proof of title, there must be further evidence in the case of each, that the alleged executant was entitled to grant such a document. The District Judge also throws doubt whether the documents were produced from proper custody, as to which I would only point out that the custody of the Pal defendants is what is explained to be proper custody by the explanation to Section 90 of the Evidence Act. The District Judge has not properly dealt with those documents as proof of title. Section 90 of the Evidence Act declares that, 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. Now these documents were produced in Court in 1876: that is, about 22 years before this suit, and they bear dates much beyond thirty years, and therefore the law declares that the District Judge may presume certain facts from them, that is to say, he may regard such facts as proved, unless and until they are disproved, or he may call for proof of them (see definition of 'may presume,' Section 4, Evidence Act). The District Judge has, in my opinion, rejected these documents without proper consideration, and in this view the case must be remanded for reconsideration. No doubt these papers do not bear the signature of the executants; but they set out their names, and they bear seals purporting to be those of the executants or grantors, and the absence of signature would be amply supplied by seals shown to the satisfaction of the District Judge to be those of the grantors. The mere possession or production of documents conferring a mukurari title, if they do amount to this, unless supported by some corroborative evidence of action taken under it, would be of little, if any, weight-Mussammat Phool Bibee v. Goor Surun Doss (1872) 18 W. R. 485 and Roikunt Nath Kundu v. Lukhun Majhi (1881) 9 C. L. R. 425 The degree of credit to be given to these old documents would depend on the circumstances elicited by the evidence derived from the subsequent conduct of the parties, but the nature of these documents must be first ascertained--Hari Chintaman Dikshit v. Moro Lakshman (1886) I. L. R. 11 Bom. 89 Moreover, in dealing with such evidence no doubt the Court must act with especial caution, and in this respect I would point to Trailokia Nath Nundi v. Shurno Chungoni (1885) I. L. R. 11 Calc. 539 The District Judge has not considered the evidence from this point of view We have in this case the fact that the plaintiffs ignore the Pal defendants, while these defendants claim to be the tenants of the plaintiffs under a mukurarititle and assert that the Hazra defendants are their tenants. But so far as the case is presented to us, the plaintiffs have not been able to prove that the Hazra defendants are their tenants. The occupation of the lands by the Hazra defendants does not necessarily prove this, if the Pal defendants have an intermediate title as mukuraridars making them the direct tenants of the plaintiffs. That is the real matter now in issue. I may here observe that, in stating that there is no evidence that the Pal defendants have ever received rent from the Hazra defendants, the Sessions Judge is in error. It is for him to find, whether the evidence that is on the record does pr does not prove such payments. The Distriet Judge has also taken into consideration the suit of 1875, in which the Pal defendants were sued for rent as in occupation of this land. That they held as mukuraridars as stated by them was denied, but this issue was never tried, and on the findings of the Distriet Judge deciding the case this was unnecessary. The observations of the Court in throwing doubt on the documents tendered in proof of the mukurari title axe therefore obiter, and cannot now he taken into consideration; still the Pal defendants were found to he the tenants and were held to he liahle for rent, and this litigation is therefore of some importance in the trial of the issue of title raised in this suit. The case must, therefore, be remanded to the District Judge for reconsideration, and especially in regard to the evidence of mukurari title set up by the defendants.
4. Costs to abide the result.
5. Without suggesting that the ultimate conclusion of the learned Judge in this case is wrong--a matter upon which I desire to express no opinion at present, I think that the manner in which he has dealt with the potta and amalnama upon which the defendants placed reliance is open to serious exception. He concedes apparently that these documents, which purport to be ancient documents in the sense of Section 90 of the Evidence Act, came from proper custody, and there can he no doubt that, if genuine (on which assumption only the question can arise), they do come from proper custody, but he has refused to give effect to them for two reasons, neither of which is in my opinion sustainable
6. It is, it is true, in the discretion of a Court, whether it will, raise the presumption in favour of a document for which Section 90 provides. But this discretion is not to be exercised arbitrarily but must be governed by principles which are consonant with law and justice. And while on the one hand, as has been more than once pointed out by this Court, great care is requisite in applying the presumption, for, as Garth, C.J., obseives in Tratlokia Nath Nundi v. Shurno Chungoni (1885) I. L. R. 11 Calc; 539: ' Nothing can be more easy than for an unscrupulous person, who is wrongfully in possession of property and wants to make out a title to it, to forge a deed in his own favour more than 30 years old, and then produce it himself in Court, and say that, because he is in possession of the land he must needs be the proper custodian of the deed,' on the other hand it is clear that very grave injustice may be perpetrated if an ancient document coming from proper custody is rejected by a Court capriciously or for inadequate reasons.
7. The first reason assigned by the learned Judge for rejecting the documents is that, instead of Being signed,. they are sealed. But for the present purpose the sealing of a document, if the seal has been affixed for the purpose of authenticating it as the document of the person, whose name the seal bears, is sufficient. In the case of the documents now in question, there can, I think, be no doubt, on the assumption that they are genuine, that the seals were affixed for that purpose. His second reason is that there was no evidence in the case of either document to show that the alleged executant was entitled to grant such a document. This would no doubt be a very good reason for refusing to give effect to them, if the title of the alleged executants had been called in question during the trial. But we are informed that no such question was raised. The documents were said by the other side to be forgeries, but it was not suggested that, if genuine, the executants were without title; so that it would seem that the defendants were neither called upon to prove nor afforded the opportunity of proving the title of the alleged executants. The real point in dispute between the parties was as to the genuineness of the documents, and that question the learned Judge has not decided. It may be needless to point out that, because a document purports to be an ancient document and to come from proper custody, it does not therefore follow that its genuineness is to be assumed. If there are reasonable grounds for suspecting its genuineness, and the party relying upon it fails to satisfy the Court of its due execution, there is an end of it. But if no such grounds exist, and it satisfies the conditions prescribed by Section 90 of the Indian Evidence Act, then proof of execution is dispensed with, and it is to be dealt with on the same footing as any other genuine instrument. If the authority or the title of the executant, for example, be not questioned, then effect is to be given to it as though he had the requisite authority or title. If either be questioned, then of course the person on whom the burden of proof lies must adduce evidence to satisfy the Court on the point, or he fails. When the genuineness of a document purporting to be an ancient document is put in issue, it appears to have been sometimes, thought that any presumption in its favour is there by excluded. But this would be to deprive the party producing it of the benefit of the presumption precisely in the circumstances in which he most stands in need of its aid. And there seems to be no difference in principle between cases in which due execution is traversed without more--those, that is, in which the party relying on the document is put to proof of it, and those in which it is alleged that the document is a forgery, except that in the latter case, the suspicions of the Court may be aroused by the nature of the plea. But in the one case, as in the other, the presumption merely takes the place of the evidence which would, where a modern document is concerned, be necessary for the purpose of proving due execution. The Court may decline to raise the presumption, in which case the party producing the document must fail, unless he is provided with evidence in support of it. But where the Court thinks proper to raise the presumption, it must be met and rebutted in the same way as direct evidence of execution in the case of a modern document. The proper rule is, I think, allowing for the greater caution necessary in this country in dealing generally with documentary proof, well stated by Mr. Taylor in his work on the Law of Evidence in England. He says (page 587, 8th Edition)--' An ancient deed, which has nothing suspicious about it, is presumed to be genuine without express proof, the witnesses being presumed dead, and if found in proper custody and corroborated by evidence of ancient or modern corresponding enjoyment or by other equivalent or explanatory proof, it will be presumed to have constituted part of the actual transfer of the property therein mentioned, because this is the usual course of such transactions. '
8. It appears to me that the learned Judge has not in the present case had such considerations as these sufficiently before his mind, and I think therefore that the case ought to go back to him for reconsideration. The learned Judge, I need hardly point out, should not allow himself to be influenced when dealing with the documents by anything said with regard to them by Mr. Tottenham in his judgment in the case of Ram Dhan Mandal v. Nabin Chandra Pal, dated the 29th March 1876, which was brought to our notice.
9. There is also another point upon which there ought, I think, to be a more careful expression of opinion by the learned Judge. He states in his judgment: 'There is also no evidence of payment of any rent to defendants Nos. 4 to 6.' Whether he means proof of payment or evidence of payment in the proper sense may be a question. But if the latter, the statement is not borne out by the record, for our attention was called to the evidence of more than one witness that such payments had been made. I accordingly agree in thinking that the decree appealed against should be set aside, and the case remitted to the lower Appellate Court to be properly disposed of.