Presumption under Section 90 of the Indian Evidence Act with regard to the genuineness and regularity of documents which are more than 30 years old, is inapplicable when it comes to a will, observed the Supreme Court.  The division bench of Justices S Ravindra Bhat and Hima Kohli [in the case of Ashutosh Samanta (D) by LRs and Others v. SM. Ranjan Bala Dasi and Others] was of the view that the genuineness of the will has to be proved in terms of Sections 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act.

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Relying on its decision in MB Ramesh (D) by LRs v. KM Veeraje Urs (D) by LRs and Others (2013), the Court said that Wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.

The Court was hearing an appeal against the decision of the Calcutta High Court which had confirmed the decision of the trial court allowing a petition for grant of letters of administration under Section 278 of the Indian Succession Act. In the event where attesting witnesses may have died or cannot be found, the propounder is not helpless since Section 69 of the Evidence Act would be applicable, the Court said.

As per the background of the case, one Gosaidas Samanta, the testator, had three sons, Upendra, Anukul and Mahadev. He died leaving behind a will dated November 16, 1929. By his will, he bequeathed his estate among three heirs, his sons Anukul and Mahadev, and his grandson Shibu, who is the son of Upendra. However, no share was named in favor of Upendra. In 1945, a partition deed was drawn between these three co-sharers. This arrangement was apparently accepted by Upendra, who executed a disclaimer document, in respect of one part of the properties, sold by Shibu, out of his share. In 1952, alleging that he was in occupation of a part of the properties owned by the testator, and that he had purchased them from Upendra, the present appellant filed a suit for partition and possession which was dismissed on the finding that the appellant had no title. The judgment was, however, reversed by the appellate court which passed a preliminary decree for partition.

Upon further appeal, the High Court noticed that although the Will had been relied upon, it was neither probated nor were letters of administration sought in respect of it. The High Court thus cast doubts about the possession of the respondent. With regard to the High Court’s finding, especially the absence of a probate or letters of administration, the respondents approached the competent court for letters of administration.