Chhattisgarh High Court: Sanjay K Agrawal J., dismissed the second appeal being devoid of merits.
The facts of the case are such that the suit property was held by Jhulan Rajwar, who acquired patta of suit land in his favour in Surguja Settlement and remained in possession during his lifetime and died issueless leaving behind his wife Sonmet. Since Jhulan Rajwar was issueless, he adopted his nephew Ramcharan’s son namley Budhu Rajwar (plaintiffs’ father) and also executed a Will dated 05-03-1942 and after the death of Jhulan Rajwar, Budhu Rajwar came into possession of the said suit land by way of the Will. It is the case of the plaintiffs (sons of Budhu Rajwar) that after the death of Jhulan Rajwar his wife Sonmet executed a gift deed in favour of Rangu i.e. defendants’ predecessor in interest registered on 22-05-1962, as such; plaintiffs’ suit deserves to be dismissed. The Trial Court held that plaintiffs have failed to prove the Will in accordance with Section 63(c) of the Indian Succession Act, 1925 read with Section of the Indian Evidence Act, 1872. Agrreived by this, first appeal was filed which upheld that Trial Courts verdict. Aggrieved by the same, instant second appeal has been filed under Section 100 of the CPC.
Counsel for the appellants submitted that the Will has been duly proved as per the provision contained in Section 69 of the Evidence Act, 1872. the Will dated 05-०३-1942 (Ex. P/4) is a more than 30 years old document which has been produced from proper custody, therefore, presumption of valid execution of the Will would be made and even if the attesting witnesses have not been examined, presumption of due execution and attestation of the Will (Ex. P/4) will be raised by virtue of the provision contained under Section 90 of the Evidence Act.
Counsel for the respondents submitted that plaintiffs utterly failed to prove the will prescribed by Section 69 of the Evidence Act. It was further submitted that Section 90 of the Evidence Act which states about the presumption of validity of a 30 years old document is not applicable in this case and the Will has to proved in accordance with Section 63(c) of the Indian Succession Act read with Section 68-69 Of the Indian Evidence Act.
Issue 1: Section 69 of Evidence Act, 1872
The Court relied on judgments Babu Singh v. Ram Sahai, (2008) 14 SCC 754, K. Laxamanan v. Thekkayil Padmini, (2009) 1 SCC 354, Kalyanswami. v. L. Bakthavatsalam, 2020 SCC OnLine SC 584 wherein it was observed that Section 69 of the Evidence Act provides that if execution of Will could not be proved by examining the attestor or in absence of non-availability of attestor, to prove the Will, secondary evidence could be adduced by proving the handwriting of one of the attesting witnesses and signature of the executant of the document to be in the handwriting of that person. Two conditions are required to be proved for valid proof of the Will, the person who has acquaintance of the signature of one of the attesting witnesses and also the person executing the document should identify both the signatures before the Court.
Issue 2: Section 90 of the Evidence Act, 1872
The Court relied on judgments Laxmi Barvah v. Padma Kanta Lalita, (1996) 8 SCC 357; Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 wherein it was held that Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities, to prove the execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised, if the document in question is raised from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.
The Court observed that it is quite vivid that both the attesting witnesses of the Will namely Bhullu Rajwar and Gangaram had already died at the time of institution of the suit and they were not available to prove the Will. In these circumstances, duty is cast upon the plaintiffs to prove the Will as per Section 69 of the Evidence Act that the signature of the executant on the Will that it is of his own and at least the signature of one of the attesting witnesses have to be identified in the manner known to law. Merely saying that the signature of the attesting witness is of him may not be sufficient unless he produces the signature of the attesting witness on some admissible document and makes both the signatures available for comparison by the Court to find out whether the person acted as a real witness, which has admittedly not been done in the instant case.
The Court thus held that given the observations in light of the facts stated above, it cannot be held that the Will has been proved in accordance with Section 69 of the Evidence Act. It was further held that Section 90 of the Evidence Act would have no application in case of Will in view of the strict requirement contained in Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act,
In view of the above, impugned order upheld and the second appeal was dismissed.[Choudhari v. Ramkaran, 2020 SCC OnLine Chh 1015, decided on 29-09-2020]
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