Evidence Act, 1872 – ss.68, 69, 71 and 90 – Proof of Will – Held: Wills cannot be proved only on the basis of their age – The presumption u/s.90, Evidence Act 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 ss.63(c), Succession Act and s.68, Evidence Act – There are often situations when wills which otherwise may have satisfied the requirements of being attested, as provided by law, cannot be proved in terms of the said two provisions, for the reason that the attesting witnesses are not available, or if one of the witnesses denies having attested the will – ss.69 and 71, Evidence Act then come to the aid of the propounder – On facts, the will was duly executed, and the respondent-propounder was successful in proving it – No infirmity in the impugned judgment of the High Court – Indian Succession Act, 1925 – s.63(c).
Dismissing the appeal, the Court
HELD: 1.1 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. There are often situations when wills which otherwise may have satisfied the requirements of being attested, as provided by law, cannot be proved in terms of the said two provisions, for the reason that the attesting witnesses are not available, or if one of the witnesses denies having attested the will. Sections 69 and 71 of the Evidence Act, 1872 then come to the aid of the propounder. 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. [Paras 13, 14, 17][243B-D; 245-D-E]
1.2 In the present case, 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 ‘NB’, who drew and signed the will. In addition, PW-4, son of ‘NB’, 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 crossexamination. 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 ‘U’, 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 ‘U’ 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. [Paras 18, 19 and 20][245-EH; 246-A-B] M. B. Ramesh (D) by L.Rs. v K. M. Veeraje Urs (D) by L.Rs. & Ors. Civil Appeal No. 1071/2006; Babu Singh &Ors. v. Ram Sahai alias Ram Singh [2008] 7 SCR 250; K. Laxmanan v. Thekkayil Padmini & Ors. [2008] 16 SCR 1117; V. Kalyanaswamy (D) by L.Rs. & Ors. v L. Bakthavatsalam (D) by L.Rs. & Ors., Civil Appeal No. 1021-26/2013 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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