SHANKAR KUMAR Vs. RAM NARAIN

JUDGEMENT

(1.) THE challenge by means of the present first appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 3.8.2000 whereby the suit for partition and rendition of account of the Appellant/Plaintiff was dismissed. The suit has been dismissed on the ground that the property belonged to the late grand -mother, Smt. Bhagirathi Devi, and Smt. Bhagirathi Devi had executed her Will dated 20th March, 1952 whereby the Appellant was disinherited. The Trial Court after the issues were framed, decided the relevant issues being Issues No. 1 to 4 in paragraphs 6 and 7 of the impugned judgment which read as under:

(2.) I do not find any illegality or perversity in the aforesaid findings and conclusions of the Trial Court. The certified copy of the Will has been duly exhibited as Ex.DW -4/1 in the statement of DW -4 who was the clerk who brought the file of the Suit No. 149/1987 where the original Will was filed. The Trial Court has also relied upon the provision of Section 90 of the Indian Evidence Act 1872 which states that a document which is more than 30 years old, can be presumed to be correct and it need not be proved in any manner, as required in law. As per Section 90 there is a presumption with regard to the due execution and attestation of a document which is 30 years old. I may also note that when this document was exhibited, no objection was raised to the exhibition of the document and, in fact, no cross -examination was done of DW4 in spite of opportunity being given. There, therefore, cannot be any cavil to the proof of the Will of Smt. Bhagirathi Devi, the grand -mother, which has been exhibited as 'Ex.DW -4/1', and on the basis whereof, the Appellant was disinherited and the suit was consequently dismissed. The Trial Court has also rightly held that the Will of Smt. Bhagirathi Devi was in the knowledge of the Appellant all along as this Will of Bhagirathi Devi was mentioned in the Will of her late husband/grandfather of Appellant and the Appellant had way back initiated a litigation with respect to the Will of the grandfather.

(3.) SINCE the main appeal has been dismissed, all the aforesaid applications stand disposed of accordingly. The interim order passed on 18th November, 2003, stands vacated. Trial Court record be sent back.