Presumption U/S 90 Of Evidence Act Applies When Will Which Is Over 30 Yrs Old Is Produced From Proper Custody: Madras High Court

According to Section 90 of the Indian Evidence Act (Section 92 of Bharatiya Sakshya Adhineeyam) when any document, purporting or proved to be 30 years old, is produced from any custody which the court considers proper, the court would presume that the signature and every other part of the document, which purport to be in handwriting of any particular person, is in that person's handwriting, and in case the document is executed or attested, it was duly executed and attested by the person.

Justice V Lakshminarayanan observed that the Section did not exclude a will. The court added that by the very texture of Section 90, the document that requires execution and attestation like a will is presumed to be duly executed and attested if it is more than 30 years old and produced from proper custody.

“A reading of Section 90 shows that it does not exclude a “WILL” from its operation. Insofar as the “WILL” is concerned, it requires execution and attestation….. Therefore, by the very texture of Section 90, documents which require attestation, such as mortgage, settlement deed or “WILL” are not excluded. This Section had been grafted into the Indian Evidence Act only as a rule of necessity and convenience,” the court observed.

The court added that if the will is more than 30 years old and produced from proper custody and it is shown that the attesting witnesses are alive and not produced before the court, it may resort to the presumption under Section 114 illustration (g) instead of one under Section 90. The court added that the presumption under Section 90 or under Section 114 illustration (g) should be guided by the principle governing “may presume” under Section 4 of the Indian Evidence Act.

The court also made it clear that the presumption under Section 90 is not wide and is limited to the signature, execution, and attestation of the document. The court added that the presumption does not apply to the contents of the document which would have to be proved like other facts.

“The presumption under Section 90 is not a wide one. The presumption that the Court can draw from the document is only with respect to signature, execution or attestation of the document. The presumption does not extend to the correctness of the statement found in such documents nor that the contents of the documents are true. Such statement regarding past events and the contents would have to be proved like any other facts,” the court said.

The court was hearing an appeal preferred by one Marathal against the judgment and decree of Principal Subordinate Judge, Tiruppur. Marathal, the third daughter of one Palaniammal and Vellappa Gounder, claimed that she had 1/4^th share in the property which was being enjoyed by her brother Marappan. She had preferred a suit for partition. During the suit proceedings, the defendants, including the plaintiff's sisters said that their mother had executed an unregistered will bequeathing her property in favour of her only son Marappan and after their mother's death, Marappan took possession of the property and was enjoying the same till his death. Though the trial judge ruled that the will was not proved, the appellate judge was satisfied that the will was proved.

The appellant argued that there was a delay in the projection of the will, that there was a contradiction on who possessed the will, and argued that the will was fabricated one. it was also argued that when the requirement of Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act were not complied with, the court's only option was to reject the will.

The court however rejected these contentions. The court noted that there was nothing artificial in the bequeath considering that it was made at a time when the Palaniammal was suffering from cancer and Marappan was only 12-14 years old at the time and might have been left without any means.

The court did not find anything undesirable or artificial in the evidence of the attesting witness, who was also the elder sister of both Marathal and Marappan. The court also did not find anything suspicious in Marappan not producing the will at the time of taking a loan. The court noted that the loan was not a mortgage by deposit of title deeds but a simple hand loan. The court thus noted that the presentation of the will after 40 years was not to evade the drawing of any adverse interference but merely because the necessity to present the same had not arisen to date.

The court thus agreed with the appellate court and dismissed the appeal.

Amicus Curiae: Mr.Sharath Chandran

Counsel for the Appellants: Mr.R.Srinivas, Senior Counsel for Mr.S.Sithirai Anandan

Counsel for the Respondent: Mr.R.Selvakumar, Mr. D.Babu Varadharajan

Citation: 2024 LiveLaw (Mad) 361

Case Title: Marathal (Died) and Another v. Kanniammal (Died) and Others

Case No: Second Appeal No.339 of 2019