Will Can't Be Presumed To Be Genuine Merely Because It Is Aged More Than 30 Years Old : Supreme Court

The Supreme Court has held that the presumption under Section 90 of the Indian Evidence Act regarding the genuineness of documents aged more that thirty years old  is not applicable to a will.

"wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills", the Court held following the precedent M.B. Ramesh (D) by L.Rs. v K.M. Veeraje Urs (D) by L.Rs. & Ors[Civil Appeal No. 1071/2006, decided on 03.05.2013.

The Court also added that a will has to be proved in in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.

The Court further held that when attesting witnesses of a will are not available, Section 69 of the Evidence Act, 1872 is applicable.

“It is therefore clear that in the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable”, Justices Ravindra Bhat and Hima Kohli held.

The Court was hearing a challenge against a Calcutta High Court order which affirmed a judgment and decree by the trial court allowing a petition for grant of letters of administration under Section 278 of the Indian Succession Act, 1925.

One Gosaidas Samanta, the testator, had three sons – Upendra, Anukul and Mahadev. He died and was survived by his three sons and widow Bhagbati Das, and left behind a will dated November 16, 1929. The testator bequeathed his estate among three heirs – his sons Anukul and Mahadev, and his grandson Shibu, the son of Upendra (who was not granted any share).

In 1945, a partition deed was drawn between these three co-sharers. This arrangement was apparently accepted by Upendra, who executed a disclaimer document, in respect of one part of the properties, sold by Shibu, out of his share. In 1952, alleging that he was in occupation of a part of the properties owned by the testator, and that he had purchased them from Upendra, the present appellant filed a suit for partition and possession. The suit was dismissed on the finding that the present appellant had no title.

That judgment was however reversed by the appellate court which passed a preliminary decree for partition. Upon a further appeal by the present respondent (the son of Mahadev), the High Court noticed that although the will had been relied upon, it was neither probated nor were letters of administration sought in respect of it.

The High Court cast doubts about the possession of the respondent herein. Having regard to the High Court’s finding, especially the absence of a probate or letters of administration, the respondents herein approached the Trial Court. At the time of trial, none of the attesting witnesses was alive. The trial court therefore, relied upon the depositions of two of the sons of the testator as well as the deposition of one Surendra Nath Bhowmick who deposed to having seen the testator duly sign the will.

The administration proceedings were contested by the present appellant, i.e., the purchaser of the properties from Upendra. He contended that the proceedings were not maintainable as relief was sought after an inordinately long period of time. The trial court relied upon the depositions of witnesses as well as the documents produced which included the registered deed of partition, which expressly mentioned the will in question. The trial court also relied upon a document, i.e., deed executed by Upendra, which also contained a reference to the will. The Trial Court recorded that the respondent was entitled to letters of administration. An appeal against that judgment was rejected. Therefore, the present appeal reached the Top Court.

What the Court held

In the present case, after explaining the legal provisions, the Court noted that both attesting witnesses had died. The two sons of the testator deposed about their presence when the will was signed by him. They also identified the signatures of Nivas Bhuiya, who drew and signed the will. In addition, one Phani Bhusan Bhuiya (PW-4), son of Nivas Bhuiya, deposed. In his evidence he deposed to having been present when the testator and the two attesting witnesses signed the will; he was able to identify their signatures.

“This witness was educated and a graduate. The circumstances when the will was signed, where it was signed and who all were present, were deposed by him. Additionally, the witness also withstood cross examination”, the court explained.

Besides the deposition of witnesses, the trial court relied on the partition deed which gave effect to it, and in which, shares in accordance with the terms of the will were distributed. This document was a registered one; further, the late Upendra, predecessor of the appellant, also signed a document which acknowledged the existence of the will.

“If all the above circumstances are considered in totality, and one also keeps in mind the fact that none of the heirs of Upendra contested the grant of letters of administration, there can be only one conclusion, i.e., that the will was duly executed, and the propounder/respondent herein was successful in proving it”, the Bench observed before dismissing the appeal.

Case Title: Ashutosh Samanta Versus Ranjan Bala Dasi & Ors | Civil Appeal No.7775 Of 2021

Citation : 2023 LiveLaw (SC) 190

Indian Evidence Act 1872 - Section 90- wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills - Wills have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872- Para 13- Followed M.B. Ramesh (D) by L.Rs. v K.M. Veeraje Urs (D) by L.Rs. & Ors[Civil Appeal No. 1071/2006, decided on 03.05.2013.

Indian Evidence Act Evidence Act 1872- Section 69- In the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable- Para 17