Hari Swarup, J. - (1.) The following question of law has been referred to us for our opinion :- "Whether Sub-section (2) of Section 90-A of the Evidence Act as amended by the U. P. Civil Laws (Reforms and Amendment) Act controls the operation of Section 90 (1) and (2) of the Evidence Act as amended by the said U. P. Civil Laws (Reforms and Amendment) Act, 1954." The question arose in the following circumstances :- A certified copy of a registered will was pressed in evidence in the case and a presumption about its execution, attestation and writing was sought to be raised by reason of Section 90 (2) of the Evidence Act. The Civil Judge did not accept the plea on the ground that the provisions of Section 90 were not attracted. The learned single Judge before whom the appeal came up for hearing was of the opinion that in the circumstances of the case the presumption could be raised, meaning thereby that the conditions contemplated by Section 90 of the Act were present. The other objection which was taken before learned single Judge was that because the document was the basis of the suit no presumption about its due execution could be raised by reason of Sub-section (2) of Section 90-A of the Evidence Act. As a Division Bench in Om Prakash v. Bhagwan, (AIR 1974 All 389) had taken a different view the learned single Judge referred the question to a Division Bench. The Division Bench, finding that the decision in Om Prakash's case (supra) needed reconsideration and the question was of general importance, referred the question for the opinion of a larger Bench. It is how the question has come before us.
(2.) Section 90 of the Evidence Act was amended by the U. P. Civil Laws (Reforms and Amendment) Act 34 of 1954, in two ways. The existing section was renumbered as Section 90 (1) and for the words "thirty years" the words "twenty years" were substituted and Sub-section (2) was added which was in the following terms:- "(2) Where any such document as is referred to in Sub-section (.1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, 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 person by whom it purports to have been executed or attested."
(3.) After Section 90 Section 90-A was added which runs as under:- "90-A (1) Where any registered document or a duly certified copy thereof or any certified copy of any document which is part of the record of a court of justice, is produced from any custody which the court in the particular case considers proper, the court may presume that the original was executed by the person by whom it purports to have been executed. (2) This presumption shall not be made in respect of any document which is the basis of a suit or of a defence or is relied upon in the plaint or written statement. The explanation to Sub-section (1) of Section 90 will also apply to this section.";