Proof Of Will & Presumption Under Sec 90 Of Evidence Act : Some Conflicting Decisions

"A decision which runs into over seven hundred closely printed pages is unlikely to be read by the majority of the Bar; and if read only once is unlikely to be fully understood. But, a legal profession which misses out on the liberal and legal reading of this decision is thus likely to commit a mayhem upon itself, and thereby upon the future development of the constitutional jurisprudence in this country. As always, the illiteracy of the literate is more pernicious for development than that of the illiterate."

Baxi's remark applies to law in general in this age of information overload.

Last week Justice S.Nagamuthu, a former Judge of the Madras High Court took a class on the law relating to "Proof of Wills". To a question posed by the host regarding the applicability of Section 90 of the Indian Evidence Act, 1872 to Wills, Justice S.Nagamuthu cited the recent decisions of the Supreme Court and opined that the provision will have no application. But, the host Shri.Srinivasaraghavan, a seasoned civil lawyer, did not appear to be fully convinced. And that made me look up the relevant case laws and consult the standard text books.

Section 68 is as follows :

"68.Proof of execution of document required by law to be attested. –– If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

Section 90 is as follows :

"90.Presumption as to documents thirty years old. –– 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.

Explanation.–– Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This explanation applies also to section 81.

Illustrations

(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.

(c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper."

The Supreme Court in (2013) 7 SCC 490 (M.B.Ramesh v. K.M.Veeraje Urs) held as follows :

"17.At the same time we cannot accept the submission on behalf of the respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872 ("the Evidence Act" for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh Vs. Shamsher Singh reported in (2009) 3 SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act."

In Bharpur Singh v. Shamsher Singh, the principle was enunciated as follows :

"19.The provisions of Section 90 of the Indian Evidence Act, 1872 keeping in view the nature of proof required for proving a Will have no application. A Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. {See B. Venkatamuni vs. C.J. Ayodhya Ram Singh & ors. [(2006) 13 SCC 449]}"

It may be noted that the issue that arose in Venkatamuni vs. C.J.Ayodhya Ram Singh pertained to the determination of genuineness of a Will dated 23.03.1968 in a O.P filed in 1970 itself. The testatrix had died on 29.09.1968. The said case had no occasion to deal with the applicability of Section 90 of the Evidence Act because the Will in question was not an ancient document.

Even if one glances through the relevant pages of any standard text book like Sarkar or Sir John Woodroffe & Syed Amir Ali, it can be seen that the issue was authoritatively settled long ago in Munnalal v. Mst.Kashibai (AIR 1947 PC 15). The Board comprised such high authorities as Lord Simonds, Mr.M.R.Jayakar and Sir John Beaumont. The privy council held as follows :

"The will of Bahadur was more than thirty years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the will could be presumed under Section 90: they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will, but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of Section 90, since a will cannot be said to be "duly" executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right, and that the will must be presumed to have been duly executed. The view taken by the learned Subordinate Judge would render it impossible, in most cases, to prove ancient wills."

The principle laid down in the aforesaid decision of the privy council was approved by a Three Judges Bench of the Supreme Court in K.V.Subbaraju v. C.Subbaraju (AIR 1968 SC 947) in the following terms :

5.......The High Court appears to have relied upon Section 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Krishibai) (AIR 1947 PC 15). Where a certified copy of a document is produced the correct position is as stated in Bassant Singh v. Brij Raj Saran Singh, 67 Ind App 180 = (AIR 1935 PC 132) where the Privy Council laid down that if the document produced is a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old. Relying on the words "where any document purporting or proved to be 30 years old" in Section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Deo Narain Prasad, (1956 SCR 1 at p.9) = (AIR 1956 SC 305 at p.309). The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will."

As regards the reckoning of the period of thirty years, it was held in AIR 1953 Cal 471 (Sarat Chandra Mondal vs. Panchanan Mondal, that it should not be reckoned from the date of death of the testator but only from the date of the testament/Will and of course, this period is to be reckoned backwards ie., from the date when document is tendered in evidence during trial.

Woodroffe and Amir Ali catalogue a catena of cases in which the presumption was applied to the proof of Wills. [AIR 1927 Cal 102, 98 IC 147, 31 CWN 215; Mahendra Nath v. Netai Charan (1943) ILR 1 Cal 392, 215 IC 124, AIR 1944 Cal 241; Sarat Chandra v. Panchanan AIR 1953 Cal 471, 58 CWN 271, Naina Pillai v.Ramanathan AIR 1918 Mad 932, 41 IC 788, 33 MLJ 84 ; Dogar Mal v. Sunan Ram AIR 1944 Lah 58, 212 IC 416, 45 PLR 441; Nimbakdas v. Mst.Mathabai AIR 1930 Nag 225, 124 IC 609; Chiranji Lal v. Ramjilal AIR Lah 285, 182 IC 1008, 41 PLR 108].

SARKAR brings to our notice the position obtaining in other jurisdictions :

"It appears that in English law the presumption also applies to wills and is not affected by proof that the testator died within the thirty years [Deo v. Wolley, 1828, 8 B & C 22; M'Kenire v. Fraser, 1803, 9 Ves Jr 5 (SIR W GRANT VC, said : "I do not see how a will can be distinguished from a deed"); Doe v. Deakin, 3 C & P 402; Doe v. Passingham, 2 C & P 440; Radcliffe v. Parkyns, 6 Dow 149, 202. See also Tay S.87]. In America also, it has been held that the rule applies to all sorts of documents including wills (see Wig s. 2145]. In Jackson v. Blanshan, 3 Johns. N & 292, 295 (Am), it was held that the thirty years are to be computed from the time of the testator's death."

It is interesting to note that post-Bharpur Singh the High Courts have not been uniform in their approach to this issue. The  Division Bench of the Delhi High Court in Subhash Nayyar v. Registrar, University of Delhi (2013 AIR CC 992), chose to follow Munnalal v. Kashibai and overcome Bharpur Singh in the following terms :

"25.The judgment reported as AIR 2009 SC 1766 Bharpur Singh and Others Vs. Shamsher Singh does not help the case of the appellants. In this case, the Apex Court had noted the settled legal proposition that a Will must be proved in terms of provisions of Section 63 (c) of the Indian Succession Act and Section 68 of the Indian Evidence Act; in the event that the said provisions cannot be complied with, the exceptions contained in Sections 69 & 70 of the Indian Evidence Act would be attracted. It was in this context, where the aforenoted provisions had not been complied with, that the Court had noted that the provisions of Section 90 of the Evidence Act would not apply."

The Karnataka High Court likewise has also chosen to distinguish Bharpur Singh and hold that Section 90 is applicable. (Vasant H.Jayawant Bhasme vs. Shankararao Bhimrao Bhasme, (ILR 2017 KAR 5433). The Madhya Pradesh High Court without referring to the Supreme Court decision followed the privy council. (Murti Shri.Pandharinath Mandir v. Collector, Indore) (2013) 2 MP LJ 691.

The decision which I liked most was the one rendered by the High Court of Kerala in Narayanan Radhakrishna Menon vs. Narayanan Sukumara Menon (2018) 2 KLT 553. Justice A.Hariprasad after referring to M.B.Ramesh as well as Bharpur Singh observes that both are by a Bench of Two Judges whereas K.V.Subbaraju is by a Three Judges Bench. Since the Benches of lesser strength did not follow an earlier binding decision of a larger Bench, the decision so rendered cannot be regarded as binding precedents under Article 141 of the Constitution of India. The learned Judge would however remarked that in deference to the constitutional scheme and judicial discipline, he cannot and shall not make any declaration that a decision rendered by the Supreme Court is per incuriam. He of course states that he is unable to follow the ratio in Bharpur Singh and M.B.Ramesh as a binding precedent in the light of lucid expression of law by the privy council in Munnalal's case which was approved by a larger Bench of the Apex Court in K.V.Subbaraju.

The Rajasthan High Court, The Bombay High Court as well as the Punjab & Haryana High Court have chosen to follow Bharpur Singh judgment. [Prem Devi vs. Bholanath Gattani AIR 2015 Raj 200, Shantidevi v. Seth Kasturmal Dalsukh Dharmashala (2019) 1 AIR Bom R 777, Gurmail Singh v. Gurdev Singh (2010) 4 RlR (Civil) 954 and State of Haryana vs. Shanthi Devi (2013) 122 AK 407]. The Madras High Court has also followed Bharpur Singh and held that Section 90 is inapplicable in Srirangam Co-operative Building Socieity v. T.N.Muniswami Konar (2010) 2 LW 637, M.R.Ramamurthy v. Radha (2010) 6 CTC 589 and Govindaraj v. Ramadoss (2011) 7 MLJ 1132.

Academically speaking, one can argue along with Justice S.B.Sinha that Section 68 incorporates a special mode of proof for a particular type of documents and that Section 90 does not have a non obstante clause. Section 90 is a general provision whereas Section 68 is a special provision and that therefore, Section 68 cannot be controlled by Section 90 of the Indian Evidence Act, 1872.

But such an argument has to fail for more than one reason. Section 90 cannot be called as a general provision vis-a-vis Section 68. Section 90 is also a kind of a special provision as it deals with a particular type of documents, namely that are thirty years old. In the proviso to Section 68, there is an expression "any document not being a Will". If the legislature had intended to exempt Wills from the purview of Section 90, a similar expression would have been incorporated in Section 90 also. There is no expression "not being a Will" in Section 90. That apart, Section 90 is a later provision. It is a well known rule of interpretation that if two sections are repugnant, the last must prevail. (Wood v. Riley (1867-8) 3 CP 26, per Keating, J. cited in the dissenting judgment in K.M.Nanavati vs. State of Bombay (AIR 1961 SC 112). More than anything else, the proposition enunciated by Justice S.B.Sinha is more like an ipse dixit. It is a mere assertion. It is not only backed by any authority but made without reference to the binding precedents. One can therefore safely conclude that it is open to the court to presume (may presume) that a thirty year old Will produced from proper custody was duly executed and attested.

A judicial officer in the district judiciary in the State of Tamil Nadu when faced with the issue of applicability of Section 90 is likely to find herself in a quandary. Apart from the two later decisions of the Hon'ble Supreme Court, she would be faced with three decisions of the Madras High Court also. She may find it difficult to follow Narayanan Radhakrishna Menon vs. Narayanan Sukumara Menon (2018) 2 KLT 553. It is therefore submitted that the issue must be clarified by the Hon'ble Supreme Court itself at the earliest.

(Justice G R Swaminathan is a judge of Madras High Court)