Whether presumption U/S 90 of Evidence Act is applicable to document like will?

On the point no. 3, regarding status of the suit property, as to whether it is trust property or not, arguments were vehemently submitted by Shri Vijay Dixit, Senior Counsel for the appellants, mainly on the ground that the plaintiff trust filed certified copy of the will, dated 13.7.1936, executed by Kasturmal Dalsukh Agrawal. Under this will, plaintiff trust was created and suit property was bequeathed in favour of the plaintiff trust. This will is registered on 19.10.1036. According to the learned Senior counsel for the appellant, learned Trial Court erroneously admitted this will and exhibited it invoking presumption under Section 90 of the Evidence Act. He submits that the will is a special document and it can be proved at least by examining one attesting witness to prove the compliance of Section 63 (c) of the Indian Succession Act, 1925 r/w Section 68 of the Evidence Act. He placed reliance on "Bharpur Singh and others vs. Shamsher Singh" [MANU/SC/8404/2008 : 2009 (3) SCC 687], wherein the Apex Court held that presumption regarding documents 30 years old is not applicable to will. The will must be proved in terms of Section 63 (c) of the Indian Succession Act, 1925. On the point of proof of will, he placed reliance on following authorities.

1] P. Laxman v/s. Thekkayil Padmini and others [2009 (3) Mh.L.J. 510]

2] Keshav Narayan Bharti vs. The State of Maharashtra and others [MANU/MH/1368/2006 : 2006 (3) BCJ 550]

3] M.B. Ramesh (D) by L.Rs. Vs. K.M. Veeraje Urs (D) by Lrs and Ors. [MANU/SC/0462/2013 : 2013 DGLS (SC) 375]

4] Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors. [MANU/SC/0530/1976 : (1977) 1 SCC 369]

5] Sridevi & others vs. Jayaraja Shetty & ors. [MANU/SC/0065/2005 : (2005) 2 SCC 784]

6] Niranjan Umerschandra Joshi vs. Mrudula Jyotirao & ors. [MANU/SC/8788/2006 : (2006) 13 SCC 433]

7] B. Venkatamuni vs. C.J. Ayodhya Ram Singh and Ors. [MANU/SC/4692/2006 : (2006) 13 SCC 449]

8] Anil Kak vs. Kumari Sharada Raje & Ors. [MANU/SC/7520/2008 : (2008) 7 SCC 695]

In reply, learned counsel for respondent nos. 1 and 2, though fairly submitted that presumption under Section 90 of the Evidence Act is not applicable to the document like will.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.

Hon'ble Judges/Coram:

Sunil K. Kotwal, J.

Citation: AIR 2019(NOC)127 Bom
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