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12. The document in dispute is a registered mortgage deed dated 11.05.1965 which has been marked as Ex.A1 before the trial court. The defendant denies the execution of the said document and further it is his case that it has not been proved in accordance with sections 68 and 69 of the Indian Evidence Act read with section 59 of the Transfer of Property Act which requires a mortgage deed to be attested by at least two witnesses. However, it is the case of the plaintiffs that the disputed document namely the registered mortgage deed dated 11.05.1965 marked as Ex.A1 is an ancient document being more than 30 years old and therefore, the court shall presume attestation and dispense with proof as per section 90 of the Indian Evidence Act. It is also the case of the https://www.mhc.tn.gov.in/judis/ defendant that since notice to produce the mortgage deed dated 11.05.1965 (Ex.A1) was not given by the plaintiffs during the pendency of the suit, presumption under section 89 of the Transfer of Property Act as to the due execution of Ex.A1 cannot also be inferred.

15. Admittedly, the disputed document namely the mortgage deed dated 11.05.1965 marked as Ex.A1 in the suit was more than 30 years old, when it was marked as an exhibit before the trial court. There is no correlation between section 90 of the Indian Evidence Act and sections 68 and 69 of the Indian Evidence Act read with section 59 of the Transfer of Property Act. Section 90 of the Indian Evidence Act is an independent provision dealing with ancient documents (i.e., documents more than 30 years old) and is not subject to sections 68 and 69 of the Indian Evidence Act read with section 59 of the Transfer of Property Act. Sections 68 and 69 of the Indian Evidence Act and section 59 of the Transfer of Property Act lay down the normal rule for proof of documents and section 90 of the Indian Evidence Act is an exception to the normal which permits the courts to exercise its discretion to presume https://www.mhc.tn.gov.in/judis/ that the document which is thirty years old has been duly executed and attested. The only condition that will have satisfied is that under section 90 of the Indian Evidence Act, the courts will have to exercise its powers judiciously and not arbitrarily.

35. Under this section, a presumption may be drawn in favour of document of thirty years old or what is known as Ancient Documents. Ordinarily whenever the execution of a document is required to be proved, rules relating to the proof of the execution of a document as provided under relevant provisions of Indian Evidence Act are required https://www.mhc.tn.gov.in/judis/ to be proved. But Section 90 of the Indian Evidence Act is an exception, where if the document to be proved is 30 years old and is produced from any custody which the court in the particular case considers proper, the general rules of evidence as found in sections 68 and 69 of the Indian Evidence Act and section 59 of the Transfer of Property Act will not apply.