NARAMBRATH RAMADASAN Vs. N. LEELA

JUDGEMENT

(1.) Whether the compliance of mandate under Section 68 of the Evidence Act is required in proof of an ancient Will brought up through proper custody and proved to be of 30 years old or more, whether it is permissible to draw presumption under Section 90 of the Evidence Act in proof of its execution and compliance of the mandate under Section 63 of the Indian Succession Act and whether Section 90 of the Evidence Act will prevail over the mandate under Section 68 of the Evidence Act are the substantial questions came up for consideration in this appeal.

(2.) The defendants 1, 3 to 12 and 26 to 32 came up with this appeal against the decree and judgment of the First Appellate Court granting a preliminary decree of partition reversing the decree of dismissal of the Trial Court. The subject matter of the suit comes to 71 cents covered by a registered Will, Ext. B10 of the year 1945, executed by the father of first plaintiff. He passed away in the year 1947. The title to the property covered under Ext. B10 traced out under three documents of lease arrangement (kuzhikanam). It was bequeathed to the minor male children of Sri. Govindan by virtue of Ext. B10 registered Will wherein his wife Devaki was made as the executor of the Will. She had, in turn, executed a purampattam in the year 1947 under Ext. A4 by which the lease was renewed with the jenmi, the Chirakkara Tharavadu. The plaintiffs claim independent right over the property based on Ext. A4 in the name of their mother Devaki and claimed successive interest over the property by devolution on her death. It is contended that she had obtained a new lease under Ext. A4 document over the property. As such, the property would devolve upon all her legal heirs, the male and female children. The Trial Court repelled the contention of the plaintiffs and dismissed the suit, but in appeal it was found that Ext. A4 is a new lease obtained by Devaki in her individual capacity and as such the property would go equally to all her children. A preliminary decree for partition was passed in favour of the plaintiffs.

(3.) Ext. B10 is a registered Will dated 2.8.1945. The testator passed away in the year 1947. The suit is of the year 1996. There is a big gap of 50 years from the date of Ext. B10 and the date on which the suit was instituted. Ext. B10 was rejected by the First Appellate Court on the reason that the Will was not proved as mandated under Section 68 of the Evidence Act. A document required by law to be attested shall be proved in compliance of the mandate under Section 68 of the Evidence Act. The expression 'it shall not be used as evidence' engrafted in Section 68 of the Evidence Act should be understood in relation to the object of the section, a mandatory provision and there cannot be any scope for any dilution or relaxation to the requirement to be complied with and even a substantial compliance of the requirement under that section may not be sufficient. In the case of a Will or Codicil, a different treatment was given incorporating the rigour of summoning an attesting witness in proof of its execution from that of other documents required by law to be attested, presumably on the reason that the question of validity of a last testament, Will or Codicil, would arise only after the death of the testator. But it may not be possible to have a compliance of the requirement under Section 68 of the Evidence Act or the following Section 69 of the Act in proof of an ancient Will, due to the non-availability of evidence to be tendered either under Section 68 or under Section 69 of the Act. Section 68 of the Evidence Act is the provision dealing with proof of document required by law to be attested. It was brought under Chapter V of the Evidence Act dealing with documentary evidence. Section 90 of the Act was also brought under the very same Chapter giving presumption as to documents of 30 years old. This Chapter really deals with proof of contents of document and proof of its execution. None of the sections brought under Chapter V commencing from Sections 61 to 90A will have any overriding effect over any other provision therein and as such the question whether Section 90 of the Evidence Act would prevail over Section 68 of the Act would not arise. But, the expression 'proved' as defined under Section 3 of the Act should be understood with the tools provided under Chapter V of the Act in proof of execution of a document and its contents. When a document is proved by any of the provisions under that Chapter, there is no necessity for insisting further proof or compliance of mandate under any other provisions therein. When a Will or Codicil is proved under Section 90 of the Evidence Act, there is no necessity to insist for further proof or the compliance of mandate under Section 68 of the Act. The expression incorporated in Section 68 of the Evidence Act that "it shall not be used as evidence" may not have any application when the document is otherwise proved and accepted in evidence by virtue of the presumption available under Section 90 of the Act. Section 90 of the Evidence Act is really resting on a well recognized incidence of jurisprudence, filling the gap with respect to a matter which could not be proved by direct evidence or otherwise. Naturally, the presumption which is available under Section 90 of the Act should be rebuttable and till it is rebutted, it can be safely accepted under Section 90 of the Indian Evidence Act that the document is duly executed and attested as mandated. The presumption available under Section 90 of the Act is so exhaustive and in the case of a document not required by law to be attested, the court can presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in the case of a document required by law to be attested, the presumption would extend not only to its execution, but also to its attestation by the person by whom it purports to be attested. In other words, in the matter of an ancient Will or Codicil produced from proper custody, the presumption available under Section 90 of the Evidence Act would extend to all the requirements to be complied with under Section 63 of the Indian Succession Act. More specifically, there would be a presumption regarding compliance of mandate under clauses (a) to (c) to Section 63 of the Indian Succession Act in the matter of a Will or Codicil that the signature or mark was affixed by the testator or any other person on his behalf under his direction and in his presence and that attestation was done by two witnesses as mandated therein, besides the presumption that the testator or the person who had signed on his behalf by his signature or mark had intended to effectuate the writing as a Will. Unless the presumption is rebutted, everything mandated under Section 63 of the Indian Succession Act would stand established by the operation of the presumption available under Section 90 of the Evidence Act and the initial burden lies on the person who claims the Will as genuine would stand discharged. But at the same time, a mere production of a document of 30 years old from a proper custody would not itself permit the court to draw a presumption mechanically. The courts have to act with extreme caution and with utmost circumspection, having regard to the facts and circumstances of the case, for which the court must be satisfied that the document produced on its face is free from suspicion and came from proper custody. When it is satisfied, presumption would come into play and if not rebutted, there is no necessity to comply with the mandate under Section 68 of the Evidence Act in proof of execution or attestation of a document required by law to be attested including a Will or Codicil. The rejection of Ext. B10 registered will on account of non-compliance of the mandate under Section 68 of the Evidence Act by the First Appellate Court, hence, cannot be sustained.