KUMARI MARY FRANCIS Vs. BABY

JUDGEMENT

(1.) The defendants in a suit for partition contested the suit by relying on three Wills - Exs.B1, B3 and B4 as that of their parents - father Paul and mother Sara. All these Wills were found genuine by the trial court and consequently, the suit for partition was dismissed, against which the plaintiff came up.

(2.) Ext.B1 is a registered Will dtd. 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. Necessarily, the question came up for consideration is when a Will or Codicil is produced from proper custody having an oldage of more than 30 years, is it permissible to draw presumption as to its execution, whether it is necessary to summon atleast one of the attesting witnesses in proof of its execution and when the testament is found to be more than 30 years oldage and produced from a proper custody, whether the propounder can wriggle out of the liability to prove the testament in accordance with the mandate under Sec. 68 of the Act by resorting to the presumption that can be drawn under Sec. 90 of the Indian Evidence Act. The learned counsel for the appellant/plaintiff relied on the decision in Bharpur Singh & Ors v. Shamsher Singh (2009 (3) SCC 687) in support of his argument that there cannot be any application of Sec. 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court.

(3.) The issue came up before the Privy Council as early as in the year 1947 in Munnalal v. Mt. Kashibai (AIR 1947 PC 15), wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal position in Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors. (AIR 1968 SC 947). It was followed by this Court in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon (2018 (2) KLT 553). Subsequently, it was settled by a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and Another v. and State of Maharashtra and Another (AIR 2005 SC 752) that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:-