The counsel for the appellant relying on the decision reported in Munnalal v. Kashibai (AIR 1947 PC 15) contended that the presumption available in terms of S. 90 is available not only to the execution and attestation, but also to a presumption in favour of the testator capacity for such execution, because the presumption available under S. 90 is that it was duly executed and attested. In the said decision the Privy Council held that:
The will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower courts rightly held that the actual execution and attestation of the Will could be presumed under S. 90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of S. 90, since a will cannot be said to be "duly" executes by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who perform a solemn and rational at in the presence of witnesses is same and understands what he is about.
Therefore, there is no need for separate proof of testamentary capacity of the testator as the presumption available under S. 90 of the Evidence Act extends to that areas as well.
11. This aspect has been considered in several decisions by several High Courts. In Sarat Chandra v. Panchanan (MANU/WB/0174/1953 : AIR 1953 Cal. 471) it was held as follows:
A further question arises as to the extent of the presumption which arises under S. 90, Evidence Act. in regard to Wills. The Statute says that when a document purports to be executed and attested, the presumption is one of due execution and attestation. This involves the idea that the document was executed duly and attested duly: in other words, that the document Was validly executed. This involves a further contention that the testator had testamentary capacity to execute the Will.
In Venkata Rama Rao v. Bhaskararao (MANU/AP/0089/1962 : AIR 1962 AP 29) also it was held referring to AIR PC 15 that:
A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but in the absence of any evidence as to the state of testator's mind, proof out he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. Tins presumption can be justified in the case of a will more than 30 years old under the express provisions of S. 90, since a will cannot be said to be duly executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about.
Decision of a Division Bench of Madhya Pradesh High Court in Rameshwar Prasad v. Krishna (1969 MP 4) war of the same effect. Referring to the Privy council decision it was held in that case as follows:
In view of the law down in this decision we must accept that the Will was executed by the testator when he had a sound disposing mind.
It was further found taking note of the circumstances of providing maintenance to the available dependents that:
Under the circumstances, the presumption that the will was made by the testator with a sound disposing mind becomes much stronger.
The will considered by the Court was executed about 45 years back. The Madras High Court in Danapal v. Govindaraja (MANU/TN/0212/1961 : AIR 1961 Mad 262) held that:
Even prior to the decision of the Judicial committee this Court held in S. Kotayya v. Vardhamma, (MANU/TN/0106/1929 : 59 Mad LJ 461: AIR 1930 Mad 744) as follows:
The words duly attested in S. 90 of the Evidence Act justify not merely the presumption of execution and attestation but also a presumption in favour of the disposing power of the testator.
It is therefore clear that if the presumption under S. 90 of the Indian Evidence Act can be made available to the facts and circumstances of this case, no further proof of the mental capacity of the testator in Ext. B 11 is necessary.
Later the Rajasthan High Court in Moti Lai v. Sardar Mal (MANU/RH/0011/1976 : AIR 1976 Raj 40) held that:
The Will being more than 30 years old and produced from proper custody may be presumed to have been duly executed by the testator when he was in a sound disposing state of mind.
The court arrived at this decision relying on the decision in MANU/TN/0212/1961 : AIR 1961 Mad 262 and1 the said Privy Council decision and also the decision in MANU/AP/0089/1962 : AIR 1962 AP 29.
12. It is contended by the respondent that the presumption available is not always imperative because the word used in S. 90 is that the Court "may presume" rather than "shall presume" which are separately defined in S. 4 of the Evidence Act. Certainly it is the case of "may presume'; but that is a discretion vested with the-court which has to be exercised judicially and wherever circumstances warrant. In Dhanapal v. Govindaraja (MANU/TN/0212/1961 : AIR 1961 Mad 262) is was held that:
The language used in the Section is "may presume" and it is needless to say that the Court has got a judicial discretion to be exercised in drawing the presumption. But the Court cannot arbitrarily say that it will not draw the presumption merely because the matter is one for the exercise of its discretion. Thereat scope of S. 90 seems to (sic) in the normal circumstances, where it is found that the document in question emanates from an apparently lawful custody and were the documents is such that it is likely to have been exercised having regard to the common course of human conduct, and where there are no circumstances to excite the suspicion of the Court, such as unnaturalness and artificiality surrounding the transaction or an apparent interlineations or correction or correction or tampering with the document, the Court will draw the presumption.
Equivalent Citation: 1999(26)CivilCC(KERALA),2000AIHC2210 kerala
IN THE HIGH COURT OF KERALA
S.A. No. 971 of 1989 and Cross Objection
Decided On: 12.11.1999
Acho Dominic Vs. Xavier
Hon'ble Judges/Coram:
K.A. Abdul Gafoor, J.
K.A. Abdul Gafoor, J.
1. The legal representatives of the sole defendant in a suit for partition are the appellants in this case. The plaintiffs, the children of the deceased defendant's sister Thresiamma filed a suit for partition of the properties held by her father Acho. A notice was issued demanding partition and separate possession of the properties". The defendant objected to that demand by a reply notice stating that the said Acho had executed a Will on 15.6.1921. In terms of the said Will the plaintiffs' mother and thereby the plaintiffs did not have any right to seek partition. This dispute led to the suit. The defendants set up the defence based on the Will which is Ext. B13 as referred to in the trial Court judgment. The trial court found that the Will was never proved as enjoined by law and S. 69 of the Evidence Act by examining any of the attesting witnesses. So the will was not accepted and acted upon by the trial court. The trial court held that the parties were entitled for partition of the properties left by the said Acho in equal shares.
2. The parties belong to erstwhile Cochin State. They are Christians. The properties sought to be partitioned is within the limit of the erstwhile Cochin State. It was also in evidence that the said Acho had died about 60 years ago when the suit was filed. The court estimated his death as in 1923, before the advent of Indian Succession Act, 1925 and even before the advent of United States of Travancore Cochin, when that Act was made applicable to the said State. The Law of Succession among Christians in erstwhile Cochin State was covered by Cochin Christians Succession Act, 1097 ME, corresponding to 1921. Thus on the date of death of the said Acho, this Cochin Act had been in force.
3. The defendant filed an appeal. In that appeal the lower appellate court held that the said Will Ext. B13, being a document originated before 30 years ago and as it was produced in Court by the defendant, the son of the testator, it was found as one presumed to be proved in terms of S. 90 of the Evidence Act as the production was thus from the lawful custody and accordingly the lower appellate Court found that the Will was genuine. The Will referred to payment of Streedhanam to plaintiff's mother thereby resulting extinction of the right to share the properties left by the testator, which was in tune with the provisions contained in the Cochin Christians Succession Act. Inspite of that the Will was not acted upon by the lower appellate Court as it was not probated in terms of S. 213 of the Indian Succession Act, 1925 or in the corresponding provision in Cochin Probation and Administration Act, 1922. When the Will thus could not be acted upon according to the lower appellate Court, the parties were entitled to the shares in terms of the Cochin Christians Succession Act as the death of Acho took place in 1923, before Indian Succession Act was made applicable to the area. Accordingly, the suit was decreed in terms of the succession provided for in the said Act. It is this decree that is challenged by the appellant mainly contending that when the Will was found to be genuine by the lower appellate court, it went wrong in not accepting the contents thereof at least for the collateral purpose regarding payment of dowry to the mother of the plaintiffs to disentitle them for partition sought for. thus the main substantial questions of law arising in this appeal centers around the said Will and necessity of its probating. The latter aspect has emerged because of change in law during the pendency of this appeal.
4. At the same time the plaintiffs have filed cross objection mainly raising a substantial question of law as to whether Ext. B13, the Will has been proved to be a genuine one. Thus the contentions of the either of the parties are centered around the said Will and it efficacy.
5. A preliminary objection had been raised with regard to the Will which is the bone of contention as revealed buy the questions of law raised in the memorandum of appeal as well as in the cross objection, that it has not been properly introduced in evidence though any witness and was not marked properly and therefore it is not in evidence. It is true that DW1 who had referred to this Will during his examination did not point out the Will to mark it as an exhibit. But the document has been marked and initialed by the Presiding Officer of the Trial Court on the very same day when other documents were marked and DW 1 was examined. The deposition of PW 1. the first plaintiff also disclosed that during his examination the Will had been shown to him. There is no other will on record. It is also revealed that Ext. B13 had been produced with a document list by the defendant as document on his behalf and the copy there of had duly been served on the plaintiffs. It is in evidence and not disputed that the will bears a date far earlier than 30 years of the date of filing the suit. A document having more than 30 years old shall be presumed to be duly executed and attested in terms of S. 30 of the Evidence Act That aspect will be discussed later. In such circumstances, the objection with regard that the old Will that it had not been properly brought in evidence is not sustainable. Even if there was a procedural irregularity in not making the document through a witness, that shall not vitiate the findings based on that document.
6. I will first examine the question of law raised in the cross objection as it is concerning the legal proof of Ext B13 will. The date of Ext B13 is 15.6.1921. The suit was filed on 8.11.1983. The document was accepted in evidence far later than that. On any count this is a document of 30 years old as referred to in S. 90 of the Evidence Act. The Will was produced by the defendant, the son of the testator made mention in the said Will, Ext. B 13. The Will normally be in the possession-of the testator, legatee, executor or any one so closely acquainted with any of them. In such circumstances we if it was in the possession of the testator on his death, its coming into the possession of ' the testator's only son cannot be said to be unlawful possession. Even otherwise he being a legatee his possession can only be termed as a lawful possession. When he thus produced that Will, which does not indicate appointment of any executor, necessarily the production of the said Will by the defendant, the legatee made mention of in the said will, can necessarily be termed as production from proper custody. The trial court did not consider that respect because the trial court was carried away be the proof of the Will as enjoined in S. 68 of the Evidence Act. But the lower appellate court considered that specific aspect and found that production by the defendant, son of the testator and the legatee, was production from a proper custody to come within the purview of S. 90. So, the production was considered to be from proper custody by the lower appellate court. That finding cannot be said to be faulty in such circumstances.
7. When a document required by law to be executed and attested is produced thus from proper custody and when the document is 30 years old, the court may presume that the signature of the executors and attestor by whom it purports to be executed and attested are the signatures of such persons who had so attested and executed. In other words, such document does not require specific proof as in the case of other documents,, because of such presumption. Of course the presumption is one to be applied depending upon the discretion of the Court concerned, taking into account the circumstances. A reading of Ext. B 13 shows that that is a Will signed by the testator in the presence of four witnesses giving elaborate discussion regarding family matters and marriage of female children, payment of dowry etc. In such circumstances that document shall be considered as a natural document in the ordinary family circumstances to give a further presumption in terms of S. 114 of the Evidence Act with regard to the fact of existence of that document That need not be proved by examining the attesting witness or in their absence or non-availability by any other witness who had seen the testators signing it or by examining person who had acquaintance with the signature of such persons. That will was not thus a strange document so far as the parties are concerned. The suit notice was replied to, citing the said will. That Will is referred to in the plaint as not executed by the material grandfather of the plaintiffs. The Will was strongly defended and referred to-in the written statement. The Will was not a strange document so far as the parties are concerned In such circumstances, necessarily, even when any proof as required under law was necessary, this being a document coming from the lawful custody and a document of more than 30 years old, when the Court applying its discretion, presumed it to be a. genuine document, there is no reason at all to interfere with the finding of the lower appellate court. So the question of law raised in the cross objection with regard to the proof of Will is answered against the respondents.
8. Defending the decree it is contended by the respondents further that even if presumption available under S. 90 of the Evidence Act is attributed to Ext. B 13 the I defendant being the propounder of Will was further burdened to prove that Will by adducing further evidence regarding testamentary capacity of the testator. There is no evidence while DW 1 was in box with regard to the testamentary capacity of the testator. The presumption attributable to Ext. B 13 in terms of S. 90, will be only with regard to its execution that it have in executed by the testator and duly attested by the attesters and it does riot give rise to a further presumption regarding testamentary capacity of the testator which the propounder had to independently prove. That burden has not bee discharged by the defendant. Therefore the will cannot be acted upon by the Court. This burden cast upon the propounder is sought to be substantiated relying on the decision of the Supreme Court in Pushpavadi v. Chandraja Kadamba (MANU/SC/0396/1972 : AIR 1972 SC 2492). The Supreme Court in that decision held that:
It is for the propounder of the Will to prove it, and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient, to discharge the onus which is placed upon the propounder of the Will.
Except the denial of execution by the testator, no suspicious circumstances are specifically pleaded by the plaintiffs or attempted to be proved though PW 1, surrounding to the said Will. In such circumstances going by the said decision the propounder has a primary duty to prove the testamentary capacity and the signature of the testator "as required by law" and that will be sufficient for the propounder to show that he had discharged his burden. The signature of the testator has to be proved to indicate that the Will had been executed by him. I have already held that the presumption in terms of S. 90 of the Evidence Act is available to Ext. B 13 Will. That is with regard to its execution and attestation so that no separate proof is necessary regarding the signing by the testator or the attesters. So in the case of a document like Ext. B 13 having a presumption in terms of S. 90, the propounder need not further prove that the testator had signed it or he heed not further prove the signature of the testator in the document.
9. The next aspect is whether the propounder is bound to prove the testamentary capacity of the testator as on the date of execution of the. will. Relying on the said decision it is contended that, that primary liability or burden is not taken away by reason of the presumption available under S. 90, because such presumption is only with respect to execution and not to the, state of the mind of the executants. The principle on burden of the propounder as mentioned in MANU/SC/0396/1972 : AIR 1972 SC 2492 is still the rule as laid down by the Supreme Court even before and after the said judgment.
It has been held in Venkatachala v. B.N. Thimmajamnia (MANU/SC/0115/1958 : AIR 1959 SC 443) that:
The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition.
It was also held in Indu Bala v. Manindra Chandra (MANU/SC/0386/1981 : AIR 1982 SC 133) that:
The onus of proving the Will is oh the propounder and in the absence of suspicious circumstances surrounding; the execution of the Will, proof of testamentary capacity and the signature of the testator a required by law is sufficient to discharge the onus.
Thus it is contended that the testamentary capacity shall be specifically proved by the propounder. It is totally absent in this case. So' Will cannot be acted upon, counsel for respondents contends.
10. The counsel for the appellant relying on the decision reported in Munnalal v. Kashibai (AIR 1947 PC 15) contended that the presumption available in terms of S. 90 is available not only to the execution and attestation, but also to a presumption in favour of the testator capacity for such execution, because the presumption available under S. 90 is that it was duly executed and attested. In the said decision the Privy Council held that:
The will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower courts rightly held that the actual execution and attestation of the Will could be presumed under S. 90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of S. 90, since a will cannot be said to be "duly" executes by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who perform a solemn and rational at in the presence of witnesses is same and understands what he is about.
Therefore, there is no need for separate proof of testamentary capacity of the testator as the presumption available under S. 90 of the Evidence Act extends to that areas as well.
11. This aspect has been considered in several decisions by several High Courts. In Sarat Chandra v. Panchanan (MANU/WB/0174/1953 : AIR 1953 Cal. 471) it was held as follows:
A further question arises as to the extent of the presumption which arises under S. 90, Evidence Act. in regard to Wills. The Statute says that when a document purports to be executed and attested, the presumption is one of due execution and attestation. This involves the idea that the document was executed duly and attested duly: in other words, that the document Was validly executed. This involves a further contention that the testator had testamentary capacity to execute the Will.
In Venkata Rama Rao v. Bhaskararao (MANU/AP/0089/1962 : AIR 1962 AP 29) also it was held referring to AIR PC 15 that:
A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but in the absence of any evidence as to the state of testator's mind, proof out he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. Tins presumption can be justified in the case of a will more than 30 years old under the express provisions of S. 90, since a will cannot be said to be duly executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about.
Decision of a Division Bench of Madhya Pradesh High Court in Rameshwar Prasad v. Krishna (1969 MP 4) war of the same effect. Referring to the Privy council decision it was held in that case as follows:
In view of the law down in this decision we must accept that the Will was executed by the testator when he had a sound disposing mind.
It was further found taking note of the circumstances of providing maintenance to the available dependents that:
Under the circumstances, the presumption that the will was made by the testator with a sound disposing mind becomes much stronger.
The will considered by the Court was executed about 45 years back. The Madras High Court in Danapal v. Govindaraja (MANU/TN/0212/1961 : AIR 1961 Mad 262) held that:
Even prior to the decision of the Judicial committee this Court held in S. Kotayya v. Vardhamma, (MANU/TN/0106/1929 : 59 Mad LJ 461: AIR 1930 Mad 744) as follows:
The words duly attested in S. 90 of the Evidence Act justify not merely the presumption of execution and attestation but also a presumption in favour of the disposing power of the testator.
It is therefore clear that if the presumption under S. 90 of the Indian Evidence Act can be made available to the facts and circumstances of this case, no further proof of the mental capacity of the testator in Ext. B 11 is necessary.
Later the Rajasthan High Court in Moti Lai v. Sardar Mal (MANU/RH/0011/1976 : AIR 1976 Raj 40) held that:
The Will being more than 30 years old and produced from proper custody may be presumed to have been duly executed by the testator when he was in a sound disposing state of mind.
The court arrived at this decision relying on the decision in MANU/TN/0212/1961 : AIR 1961 Mad 262 and1 the said Privy Council decision and also the decision in MANU/AP/0089/1962 : AIR 1962 AP 29.
12. It is contended by the respondent that the presumption available is not always imperative because the word used in S. 90 is that the Court "may presume" rather than "shall presume" which are separately defined in S. 4 of the Evidence Act. Certainly it is the case of "may presume'; but that is a discretion vested with the-court which has to be exercised judicially and wherever circumstances warrant. In Dhanapal v. Govindaraja (MANU/TN/0212/1961 : AIR 1961 Mad 262) is was held that:
The language used in the Section is "may presume" and it is needless to say that the Court has got a judicial discretion to be exercised in drawing the presumption. But the Court cannot arbitrarily say that it will not draw the presumption merely because the matter is one for the exercise of its discretion. Thereat scope of S. 90 seems to (sic) in the normal circumstances, where it is found that the document in question emanates from an apparently lawful custody and were the documents is such that it is likely to have been exercised having regard to the common course of human conduct, and where there are no circumstances to excite the suspicion of the Court, such as unnaturalness and artificiality surrounding the transaction or an apparent interlineations or correction or correction or tampering with the document, the Court will draw the presumption.
In the decision reported in Haradhan Mahatha & Ors. v. Dukha Mahatha (MANU/BH/0016/1993 : AIR 1993 Pat 129) it was held that:
According to S. 4, wherever the expression "may presume" has been used in the Act, a discretion has been given to the court to presume a fact or refuse to raise such a presumption if the Court finds that it is a fit case for raisin presumption. In that event. such fact stands proved unless and until it is disproved by other side.
As already mentioned above the terms contained in Ext. B 13 Will are as if in a normal family circumstances and natural course of action and it is not to defeat any sharer because in terms of the law prevailing then daughters were not entitled to share the property of their father, if they had been married away paying Streedhanam. In such circumstances, it has to be held that exercise of the discretion to attribute presumption in favour of the Will under S. 90 of the Evidence Act with respect to its due execution and testamentary capacity of the executants is perfectly legal.
13. The next substantial question arising in this case is whether the will need to. be probated in terms of S. 213 of the Indian Succession Act. An amendment has been made by the State Legislature inserting the words 'Indian Christian' after the word 'Mohammadan' in the said Section. By reason of that Indian Christians no longer have the liability to apply to probate a Will in ten's of the said Section. Of course this statutory change took place during the pendency of this appeal. When the lower appellate court decided the matter it ought to have been probated. The law available was to that effect. Because of the change now effected the Indian Christian will need not be probated. Whether that amendment could be applied to pending appeals is now no longer res integra. this Court as per the decision reported in Syndicate Bank v. Soji Chacko (1998 (2) KLT 25) held that it was only a prospective amendment. Even then that amendment can be applied to a case pending in appeal as well. The Court held as follows:
The right to sue (see Mani Iyer v. Azhakan, ILR 1972) (1) Ker. 248) and the right of appeal (see State of Bombay v. M/s. S.G. Films Exchange, MANU/SC/0007/1960 : AIR 1960 SC 980) are vested rights. Even the right to a forum could be vested right, (See Carikapati v. Subbiah Chowdhary, MANU/SC/0008/1957 : AIR 1957 SC 540). In my view, the right to relief if grounds are made out in support of it at the trial, is also an accrued or vested right, the said right having accrued to the litigant on his filing the suit. As observed by the Supreme Court, normally a litigant is entitled to relief on the day he approached the Court for relief. (See Rameshwar v. Jot Ram, MANU/SC/0512/1975 : AIR 1976 SC 49). The bar to the grant of relief to him as the one enacted in S. 213(1) of the Act cannot be said to be merely procedural. It-bars the grant of relief to a plaintiff (even to a defendant, if it comes to that) and such a bar cannot be held to be merely procedural. The removal of such a bar, in my view, cannot be considered to be merely procedural. It is therefore, not possible to hold that the Kerala Amendment is merely procedural and hence retrospective and consequently must be applied to suits instituted prior to the amendment.
The Court further held that:
But since the bar, as indicated by the Supreme Court in Hem Nalini's case (MANU/SC/0399/1962 : AIR 1962 SC 1471) and the other decisions referred to is only to the grant of a decree, the plaintiff can take advantage of the prospective amendment and request this Court to grant her relief on the plea that the bar to relief does not any more subsist. The plaintiff would be entitled to relief from this Court on the strength of the will if she had proved the will in the present suit as required by law.
14. Thus, as the defendant has in this case proved the will as held above, the requirement of probate no longer stands in the way. This substantial question of law also is answered in favour of the appellant reversing the finding to that effect entered into by the lower appellate court.
Accordingly, the Second Appeal is allowed and the cross objection is dismissed. The succession to the properties left by Acho will be therefore in terms of the said Will. Consequently the plaintiff will not be entitled to partition.
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