Proof Of Will & Presumption Under Sec 90 Of Evidence Act : Some Conflicting Decisions

Is Bharpur Singh v. Shamsher Singh (2009) 3 SCC 687 followed in M.B.Ramesh v. K.M.Veeraje Urs (2013) 7 SCC 490 per incuriam ?Thanks to Corona lock down, the legal profession has seriously turned to academics. Bar Associations and law offices are hosting webinars on a daily basis. This is a wholesome trend. Prof.Upendra Baxi while commenting on the Kesavanda Bharati judgment wrote thus : "A decision which runs into over seven hundred closely printed pages is unlikely to be read by the majority of the Bar; and if read only once is unlikely to be fully understood. But, a legal profession which misses out on the liberal and legal reading of this decision is thus likely to commit a mayhem upon itself, and thereby upon the future development of the constitutional jurisprudence in this country. As always, the illiteracy of the literate is more pernicious for development than that of the illiterate." Baxi's remark applies to law in general in this age of information overload. Last week Justice S.Nagamuthu, a former Judge of the Madras High Court took a class on the law relating to "Proof of Wills". To a question posed by the host regarding the applicability of Section 90 of the Indian Evidence Act, 1872 to Wills, Justice S.Nagamuthu cited the recent decisions of the Supreme Court and opined that the provision will have no application. But, the host Shri.Srinivasaraghavan, a seasoned civil lawyer, did not appear to be fully convinced. And that made me look up the relevant case laws and consult the standard text books. Section 68 is as follows : "68.Proof of execution of document required by law to be attested. –– If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." Section 90 is as follows : "90.Presumption as to documents thirty years old. –– Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.–– Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81. Illustrations (a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper. (b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper. (c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper." The Supreme Court in (2013) 7 SCC 490 (M.B.Ramesh v. K.M.Veeraje Urs) held as follows : "17.At the same time we cannot accept the submission on behalf of the respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872 ("the Evidence Act" for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh Vs. Shamsher Singh reported in (2009) 3 SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act." In Bharpur Singh v. Shamsher Singh, the principle was enunciated as follows : "19.The provisions of Section 90 of the Indian Evidence Act, 1872 keeping in view the nature of proof required for proving a Will have no application. A Will must be ...

Proof Of Will & Presumption Under Sec 90 Of Evidence Act : Some Conflicting Decisions

Justice G R Swaminathan

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