Will cannot be presumed genuine under Section 90 of Indian Evidence Act merely because it is more than 30 years old: Supreme Court

The Supreme Court recently observed that presumption under Section 90 of the Indian Evidence Act with regard to the genuineness and regularity of documents which are more than 30 years old, is inapplicable when it comes to a will [Ashutosh Samanta (D) by LRs and Others v. SM. Ranjan Bala Dasi and Others]..A division bench of Justices S Ravindra Bhat and Hima Kohli was of the view that the genuineness of the will has to be proved in terms of Sections 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act."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, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872," the Court stated while relying on its decision in MB Ramesh (D) by LRs v. KM Veeraje Urs (D) by LRs and Others (2013).In the event where attesting witnesses may have died or cannot be found, the propounder is not helpless since Section 69 of the Evidence Act would be applicable, the Court further said.The Court was hearing an appeal against the decision of the Calcutta High Court which had confirmed the decision of the trial court allowing a petition for grant of letters of administration under Section 278 of the Indian Succession Act..By way of background, one Gosaidas Samanta, the testator, had three sons, Upendra, Anukul and Mahadev. He died leaving behind a will dated November 16, 1929. By his will, he bequeathed his estate among three heirs, his sons Anukul and Mahadev, and his grandson Shibu, who is the son of Upendra. However, no share was named in favor of Upendra.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.However, the suit was dismissed on the finding that the appellant had no title. This judgment was, however, reversed by the appellate court which passed a preliminary decree for partition. Upon further appeal by the present respondent, 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.Therefore, the High Court cast doubts about the possession of the respondent. With regard to the High Court’s finding, especially the absence of a probate or letters of administration, the respondents approached the competent court for letters of administration.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 appellant, where he contended that proceedings were not maintainable as relief was sought after a very 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. It also relied upon the deed executed by Upendra, which also contained a reference to the will. Accordingly, the trial court recorded that the respondent was entitled to letters of administration. An appeal against this judgment was rejected by the High Court.Aggrieved, the appellants moved the present appeal before the Supreme Court..The apex court noted that both attesting witnesses had died. Moreover, it was also noted that the two sons of the testator deposed about their presence when the will was signed by him and they also identified the signatures of Nivas Bhuiya, who drew and signed the will. In addition, one Phani Bhusan Bhuiya, son of Nivas Bhuiya, had deposed to having been present when the testator and the two attesting witnesses signed the will and 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 observed.The Court also noted that besides the deposition of witnesses, the trial court had relied on the partition deed which gave effect to it, and in which shares in accordance with the terms of the will were distributed. It was highlighted that the document was a registered one and late Upendra, predecessor of the appellant, had also signed a document which acknowledged the existence of the will.Hence, the will was a duly executed one, the Court concluded."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."Therefore, the appeal was dismissed..Advocate Ranjan Mukherjee appeared for the appellants.Advocate Bikash Kar Gupta appeared for the respondents..[Read Judgment]