The Supreme Court in the case of Ashutosh Samanta (D) by LRs and others v. SM. Ranjan Bala Dasi and others observed that the presumption u/s 90 of the Indian Evidence Act with regards to the genuineness and regularity of documents which are more than 30 years old is inapplicable when it comes to a will.
The court said that “Wills cannot be proved only based on 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.” In case the arresting witnesses are not found then the propounder comes under section 69 of the Evidence Act.
The Court was hearing an appeal against the decision of the Calcutta High Court which had confirmed the decision of the trial court allowing a petition for the grant of letters of administration under Section 278 of the Indian Succession Act where one Gosaidas Samanta, the testator, had three sons, Upendra, Anukul and Mahadev. He died leaving behind a will dated November 16, 1929, which bequeathed his estate among the three heirs, one of them being his grandson Shibu, who is the son of Upendra.
However, no share was named in favour of Upendra. Thereafter in 1945, a partition deed was drawn between these co-sharers which was accepted by Upendra, who executed a disclaimer document in respect of one part of the properties, sold by Shibu, out of his share and alleged that he was in occupation of a part of the properties owned by the testator and that he had purchased them from Upendra, the present appellant filed a suit for partition and possession.
The trial court dismissed the suit on the ground that the appellant has no title. Thereafter the appellant court reversed the judgement and passed a preliminary decree for partition and also noticed that the will was neither probated nor were letters of administration sought in respect of it.
The aggrieved appellant moved the present appeal before the Supreme Court. The court noted that both the attesting witnesses have died And also noted that besides the deposition of witnesses, the trial court had relied on the partition deed which gave effect to it, and in which shares by the terms of the will were distributed. It was highlighted that the document was a registered one and late Upendra, the predecessor of the appellant, had also signed a document that acknowledged the existence of the will.
Hence, the will was a duly executed one. Therefore, the appeal was dismissed.