'No Presumption Of Validity For 30-Year-Old Wills U/S 90 Evidence Act, Execution Must Be Strictly Proved': Chhattisgarh High Court

Justice Bibhu Datta Guru explained that “a will speaks only from the death of the testator and remains revocable during his lifetime; therefore, its genuineness cannot be presumed merely on account of its antiquity.”

The High Court was dealing with an appeal challenging an order by which the appellant's suit for declaration of title and injunction, founded on a registered Will of 1958, was dismissed on the ground that the Will had not been proved in accordance with the mandatory requirements of law.

Noting that the Will cannot be held to be duly proven, and any claim of title based solely thereon would be unsustainable, the Single Judge added,

“The principal basis for claiming title over the suit land is stated to be a 30-year-old document, namely a will of the year 1958. However, the said will has not been duly proved by the appellants through witnesses in accordance with the provisions of Section 63 of the Indian Succession Act and Sections 68 and 69 of the Indian Evidence Act. Therefore, merely on the ground that the will is a 30-year-old document, it cannot be presumed to have been duly executed under Section 90 of the Indian Evidence Act. Rather, it is mandatory that the will be proved by attesting witnesses in compliance with the aforesaid statutory provisions.”

Background

The appellant instituted a civil suit seeking declaration of title, possession and permanent injunction in respect of the suit land, claiming right on the basis of the registered 1958 Will, allegedly executed by his grandfather, pursuant to which the appellant claimed to have succeeded to the property. However, the appellant's uncle (respondent) questioned the validity of the Will, claiming that the property was ancestral and jointly held, and further alleging that the Will was forged.

The Trial Court held that the 1958 Will was not proved in accordance with law, as its execution and attestation were not established in terms of Section 63 of the Indian Succession Act (execution of unprivileged Wills) and Section 68 (proof of execution of document required by law to be attested) and Section 69 of Evidence Act (proof where no attesting witness found), and consequently dismissed the suit. Upon appeal, the Appellate Court, vide the impugned order, dismissed the same and upheld the Trial Court's order.

Challenging the impugned order before the High Court, the aggrieved appellant submitted that the disputed lands were in his continued possession for more than 40 years, and that the executed Will is more than 30 years old. As attesting witnesses to the Will had passed away, the due execution of the same stood proven under Section 90. Further, it was submitted that the Trial Court ignored the application of Section 90, and consequently its decision was liable to be set aside.

The Court noted that while the scribe and attesting witnesses to the Will were no longer alive, no effort was made to prove the Will in the manner prescribed under Section 63 of Succession Act r/w Sections 68 and 69 IEA.

In light of the same, the Single Judge concluded that the Will cannot be held to be duly valid and observed that, “Mere registration of the will does not dispense with the mandatory requirement of proof by attesting witnesses.”

Accordingly, the Court upheld the impugned order and dismissed the appeal.

Case Details:

Case Number: Rampyare and Anr v. Ramkishun

Case Title: SA No. 183 of 2021

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