Wills Cannot Be Proved Only On The Basis Of Their Age: Supreme Court

The Supreme Court bench comprising Justices S. Ravindra Bhat and Hima Kohli  observed that wills cannot be proved only on the basis of their age and 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 Section 63(c) of the Succession Act 1925 and Section 68 of the Evidence Act,1872.

In the matter at hand a man was survived by his three sons and a widow. He left behind a will made in the year 1929. The testator divided the property between three people including his two sons and his grandson. The grandson was the son of the third son who did not get any share in the property. A partition deed was drawn in 1945 between these co-sharers and this arrangement was accepted by the third son who did not get any property. He also executed a disclaimer document in respect of one part of the properties sold by his son (the grandson of deceased) out of his own 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 the son who did not get the share , the present appellant filed a suit for partition and possession. The suit was dismissed on finding that the present appellant had no title. The judgement was then reversed by the appellant court which passed a preliminary decree for partition. On further appeal the high court observed 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 herein. None of the witnesses were alive at the time of attesting and trial court relied on two of the sons of the testator as well as on Surendra Nath Bhowmick who deposed to having seen the testator duly sign the will.

Having regard to the materials the court recorded a finding that the respondent was entitled to a letter of administration and an appeal against the judgement was rejected. Therefore, the present appeal was preferred.

The Supreme Court bench relied on the decision in M.B. Ramesh by LRs v. K.M. Veeraje Urs (D) by L.Rs. & Ors and perused section 90 of the Evidence Act and observed that wills cannot be proved only on the basis of their age and 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 Section 63(c) of the Succession Act 1925 and Section 68 of the Evidence Act,1872.

The court observed that 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 teh witnesses denies having attested the will.

The court relied on decisions in V. Kalyanaswamy (D) by LRs & Ors v. L Bakthavatsalam (D) by L.Rs & Ors, Babu Singh & Ors v. Ram Sahai alias Ram Singh  and several others to observe that the propounder in not helpless in the event where attesting witnesses may have died or cannot be found as Section 69 of the Evidence Act, 1872 would be applicable.

The bench further noted that none of the heirs of the third son contested the will which means that it was duly executed. 

In the light of the aforementioned, the court noted that there was no infirmity with the findings in the judgement of the high court.

CASE: ASHUTOSH SAMANTA (D) BY LRS. & ORS. V. SM. RANJAN BALA DASI & ORS.

CIVIL APPEAL NO. 7775 OF 2021