ASHUTOSH SAMANTA (D) BY LRS. & ORS. versus SM. RANJAN BALA DASI & ORS.

Citation: [2023] 2 S.C.R. 237 · Decided: 14-03-2023 · Supreme Court of India · Bench: S. RAVINDRA BHAT · Disposal: Dismissed

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Judgment (excerpt)

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ASHUTOSH SAMANTA (D) BY LRS. & ORS.
v.
SM. RANJAN BALA DASI & ORS.
(Civil Appeal No. 7775 of 2021)
MARCH 14, 2023
[S. RAVINDRA BHAT AND HIMA KOHLI, JJ.]
Evidence Act, 1872 – ss.68, 69, 71 and 90 – Proof of Will –
Held: Wills cannot be proved only on the basis of their age – The
presumption u/s.90, Evidence Act 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 ss.63(c), Succession Act
and s.68, Evidence Act – There are often situations when wills which
otherwise may have satisfied the requirements of being attested, as
provided by law, cannot be proved in terms of the said two provisions,
for the reason that the attesting witnesses are not available, or if
one of the witnesses denies having attested the will – ss.69 and 71,
Evidence Act then come to the aid of the propounder – On facts, the
will was duly executed, and the respondent-propounder was
successful in proving it – No infirmity in the impugned judgment of
the High Court – Indian Succession Act, 1925 – s.63(c).
Dismissing the appeal, the Court
HELD: 1.1 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. There are often situations when wills which otherwise
may have satisfied the requirements of being attested, as provided
by law, cannot be proved in terms of the said two provisions, for
the reason that the attesting witnesses are not available, or if
one of the witnesses denies having attested the will. Sections 69
and 71 of the Evidence Act, 1872 then come to the aid of the
propounder. In the event where attesting witnesses may have
died, or cannot be found, the propounder is not helpless, as Section
69 of the Evidence Act, 1872 is applicable. [Paras 13, 14, 17][243-
B-D; 245-D-E]
[2023] 2 S.C.R. 237
237
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SUPREME COURT REPORTS
[2023] 2 S.C.R.
1.2 In the present case, both attesting witnesses had died.
The two sons of the testator deposed about their presence when
the will was signed by him. They also identified the signatures of
‘NB’, who drew and signed the will. In addition, PW-4, son of
‘NB’, deposed. In his evidence he deposed to having been
present when the testator and the two attesting witnesses signed
the will; he was able to identify their signatures. This witness
was educated and a graduate. The circumstances when the will
was signed, where it was signed and who all were present, were
deposed by him. Additionally, the witness also withstood cross-
examination. Besides the deposition of witnesses, the trial court
relied on the partition deed which gave effect to it, and in which,
shares in accordance with the terms of the will were distributed.
This document was a registered one; further, the late ‘U’,
predecessor of the appellant, also signed a document which
acknowledged the existence of the will. If all the above
circumstances are considered in totality, and one also keeps in
mind the fact that none of the heirs of ‘U’ contested the grant of
letters of administration, there can be only one conclusion, i.e.,
that the will was duly executed, and the propounder/respondent
herein was successful in proving it. [Paras 18, 19 and 20][245-E-
H; 246-A-B]
M. B. Ramesh (D) by L.Rs. v K. M. Veeraje Urs (D) by
L.Rs. & Ors. Civil Appeal No. 1071/2006; Babu Singh
&Ors. v. Ram Sahai alias Ram Singh [2008] 7 SCR 250;
K. Laxmanan v. Thekkayil Padmini & Ors. [2008] 16
SCR 1117; V. Kalyanaswamy (D) by L.Rs. & Ors. v
L. Bakthavatsalam (D) by L.Rs. & Ors., Civil Appeal
No. 1021-26/2013 – relied on.
Case Law Reference
[2008] 7 SCR 250
relied on
Para 15
[2008] 16 SCR 1117
relied on
Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7775
of 2021.
From the Judgment and Order dated 02.02.2007 of the High Court
of Calcutta in FA No. 664 of 1972.
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Ranjan Mukherjee, Adv. for the Appellants.
Bikash Kar Gupta, Mrs. Debarati Sadhu, Azim H. Laskar, S.K.
Biswal, Mrs. Debanjana Raychaudhuri, Avijit Bhattacharjee, Subhro
Sanyal, Ms. Aprajita Mukherjee, Advs. for the Repondents.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J.
Background
1. This appeal, by special leave, challenges a judgment and order
of the Calcutta High Court,1 which affirmed a judg

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