[2023] 2 S.C.R.

237 237

ASHUTOSH SAMANTA (D) BY LRS. & ORS. A

v.
SM. RANJAN BALA DASI & ORS.
(Civil Appeal No. 7775 of 2021)
MARCH 14, 2023 B
[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
C
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 D
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).
E
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 F
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 G
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] H
237
238 SUPREME COURT REPORTS [2023] 2 S.C.R.

A 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
B
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
C 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
D
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]
E 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
F 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

G [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.
H
 ASHUTOSH SAMANTA (D) BY LRS. v. SM. RANJAN BALA 239
DASI

Ranjan Mukherjee, Adv. for the Appellants. A

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
B
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 judgment and decree by
the trial court2 allowing a petition for grant of letters of administration C
under Section 278 of the Indian Succession Act, 1925 (hereinafter,
“Act”). The aggrieved defendant is the appellant before this court.
2. The facts in brief are that one Gosaidas Samanta (hereinafter,
“testator”) had three sons – Upendra, Anukul and Mahadev. He died,
survived by his three sons and widow Bhagbati Das, and left behind a D
will dated 16.11.1929. The testator bequeathed his estate among three
heirs – his sons Anukul and Mahadev, and his grandson Shibu, the son of
Upendra (who was not granted any share). On 21.02.1945, a partition
deed was drawn between these three co-sharers. This arrangement
was apparently accepted by Upendra, who executed a disclaimer
E
document, in respect of one part of the properties, sold by Shibu, out of
his share.
3. 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.
F
The suit was dismissed on the finding that the present appellant had no
title.3 That judgment was however reversed by the appellate court which
passed a preliminary decree for partition.4 Upon a further appeal by the
present respondent (the son of Mahadev), 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.5 The High Court cast G
doubts about the possession of the respondent herein.
1
F.A. No. 664/1972, dated 02.02.2007
2
O.S. No. 7/1969, dated 31.05.1972.
3
Title Suit No. 647/1952, dated 29.08.1957.
4
Title Appeal No. 1027/1957, dated 17.02.1959.
5
Appeal from Appellate Decree No. 950/1959, dated 27.11.1967. H
240 SUPREME COURT REPORTS [2023] 2 S.C.R.

A 4. Having regard to the High Court’s finding, especially the absence

of a probate or letters of administration, the respondents herein
approached the competent court for letters of administration6. At the
time of trial, none of the attesting witnesses was alive. The trial court
therefore, relied upon the depositions of two of the sons of the testator
as well as the deposition of one Surendra Nath Bhowmick who deposed
B
to having seen the testator duly sign the will.
5. The administration proceedings were contested by the present
appellant, i.e., the purchaser of the properties from Upendra. He
contended that the proceedings were not maintainable as relief was sought
after an inordinately long period of time. The trial court relied upon the
C depositions of witnesses as well as the documents produced which
included the registered deed of partition, dated 21.02.1945, which
expressly mentioned the will in question. The trial court also relied upon
a document, i.e., deed executed by Upendra, which also contained a
reference to the will.
D 6. Having regard to the materials, the court recorded a finding
that the respondent was entitled to letters of administration. An appeal
against that judgment was rejected.7 Therefore, the present appeal.
Arguments

E 7. It was argued on behalf of the appellant by Mr Ranjan

Mukherjee, Ld. Advocate, that the courts below could not have relied
upon the will and granted the letters of administration in the absence of
any evidence to substantiate that the will was executed properly. It was
urged that there were suspicious circumstances surrounding the execution
of the will which cast a doubt about its genuineness given that the
F propounder had raised various contentions, including one for adverse
possession in a previous suit for partition. It was also argued that the
courts below could not have accepted the will on the basis of Section 90
of the Evidence Act,1872 and relied upon the partition deed of 1945 nor
upon the ‘Nabadi’ said to have been executed by Upendra. It was urged
G that the inordinate delay in approaching the court ought to have defeated
the claim for letters of administration.
8. On the other hand, Mr Bikash Kar Gupta, Ld. Advocate,
contended on behalf of the respondents that the present case is one
6
By filing O.S. No. 79/1969.
H 7
Impugned judgment.
 ASHUTOSH SAMANTA (D) BY LRS. v. SM. RANJAN BALA 241
DASI [S. RAVINDRA BHAT, J.]

where the courts have rendered concurrent findings of fact, which this A
court should not interfere with. It was urged that the will was duly proved
and that the question of delay in approaching the court for letters of
administration did not arise.
9. The respondent had relied upon the record, and the findings
rendered by the trial court, as well as the High Court, and contended B
that both courts consistently recorded satisfaction that the ingredients
necessary to prove the will had been satisfied, and the courts did not rest
their findings only on the basis of a presumption that the document was
old.
Analysis and Findings C
10. From the factual discussion, it is clear that the testator had
extensive properties. The appellant is a purchaser of part of the properties.
Those properties were sold by Upendra, the testator’s son. In the will,
Upendra had not been bequeathed any portion of the properties by the
testator; instead Shibu, his son, was an heir and one of the legatees. The D
respondent herein filed a suit claiming one-third share; the appellant
claimed to be in possession. Though in those proceedings, both courts
held that he was not in possession, yet, the plaintiff’s (the present
respondent) title was held not proved as he had not sought probate or
administration of the testator’s properties. Therefore, the respondent, in
subsequent proceedings, claimed letters of administration. Both courts E
have held the will to be genuine and upheld the claim for administration
by the respondent.
11. The main argument of the appellant is that the application for
letters of administration was made after a considerable delay, and that
the courts below should not have relied on Section 90 of the Evidence F
Act, 1872, which reads as follows:
“Section 90 - Presumption as to documents thirty years old
Where any document, purporting or proved to be thirty years
old, is produced from any custody which the Court in the
G
particular case considers proper, the Court may 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
executed or attested, that it was duly executed and attested
H
242 SUPREME COURT REPORTS [2023] 2 S.C.R.

A by the persons by whom it purports to be executed and

attested.
Explanation-Documents are said to be in proper custody if
they are in the place in which, and under the care of the
person with whom, they would naturally be; but no custody is
B improper if it is proved to have had a legitimate origin, or the
circumstances of the particular case are such as to render
such an origin probable.
This explanation applies also to section 81.”
12. This court, in M.B. Ramesh (D) by L.Rs. v K.M. Veeraje
C Urs (D) by L.Rs. & Ors.,8 while dealing with a similar argument regarding
applicability of Section 90 in the case of proof of will, held as follows:
“At the same time we cannot accept the submission on behalf
of the Respondents as well that merely because the will was
more than 30 years old, a presumption under Section 90 of
D the Indian Evidence Act, 1872 (‘Evidence Act’ for short) ought
to be drawn that the document has been duly executed and
attested by the persons by whom it purports to have been
executed and attested. As held by this Court in Bharpur Singh
v. Shamsher Singh reported in 2009 (3) SCC 687, a
E presumption regarding documents 30 years old does not apply
to a will. A will has to be proved in terms of Section 63(c) of
the Succession Act read with Section 68 of the Evidence Act.
That takes us to the crucial issue involved in the present case,
viz. with respect to the validity and proving of the concerned
F will. A Will, has to be executed in the manner required by
Section 63 of the Succession Act. Section 68 of the Evidence
Act requires the will to be proved by examining at least one
attesting witness. Section 71 of the Evidence Act is another
connected section “which is permissive and an enabling
section permitting a party to lead other evidence in certain
G circumstances”, as observed by this Court in paragraph 11
of Janki Narayan Bhoir v. Narayan Namdeo Kadam reported
in 2003 (2) SCC 91 and in a way reduces the rigour of the
mandatory provision of Section 68. As held in that judgment
Section 71 is meant to lend assistance and come to the rescue
H
8
Civil Appeal No. 1071/2006, decided on 03.05.2013.
 ASHUTOSH SAMANTA (D) BY LRS. v. SM. RANJAN BALA 243
DASI [S. RAVINDRA BHAT, J.]

of a party who had done his best, but would otherwise be let A
down if other means of proving due execution by other
evidence are not permitted.”
13. In view of the above decision, 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 B
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.
14. There are often situations when wills which otherwise may
have satisfied the requirements of being attested, as provided by law, C
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. Section 69 reads as follows:
“Section 69 - Proof where no attesting witness found D
If no such attesting witness can be found, or if the document
purports to have been executed in the United Kingdom, it
must be proved that the attestation of one attesting witness at
least is in his handwriting, and that the signature of the person
executing the documents is in the handwriting of that person.” E
Section 71 reads as follows:
“Section 71 - Proof when attesting witness denies the execution
If the attesting witness denies or does not recollect the
execution of the document, its execution may be proved by
F
other evidence”
15. In Babu Singh & Ors. v. Ram Sahai alias Ram Singh9, the
Court held as follows with regard to Section 69:
“It would apply, inter alia, in a case where the attesting witness
is either dead or out of the jurisdiction of the court or kept G
out of the way by the adverse party or cannot be traced despite
diligent search. Only in that event, the will may be proved in
the manner indicated in Section 69 i.e. by examining witnesses

9
Civil Appeal No. 3124/2008, dated 30.04.2008. H
244 SUPREME COURT REPORTS [2023] 2 S.C.R.

A who were able to prove the handwriting of the testator or

executant. The burden of proof then may be shifted to others.
18. Whereas, however, a will ordinarily must be proved keeping
in view the provisions of Section 63 of the Succession Act and Section
68 of the Act, in the event the ingredients thereof, as noticed
B hereinbefore, are brought on record, strict proof of execution and
attestation stands relaxed. However, signature and handwriting, as
contemplated in Section 69, must be proved.”
Section 69 was also considered in K. Laxmanan v. Thekkayil
Padmini & Ors10:
C “Since both the attesting witnesses have not been examined,
in terms of Section 69 of the Act it was incumbent upon the
Appellant to prove that the attestation of at least one attesting
witness is in his handwriting and that the signature of the
person executing the document is in the handwriting of that
D person. DW 3, who was an identifying witness also in Ext. B-
2, specifically stated that he had not signed as an identifying
witness in respect of Ext. B-2 and also that he did not know
about the signature in Ext. B-2. Besides, considering the
nature of the document which was a deed of gift and even
assuming that no pleading is filed specifically denying the
E execution of the document by the executant and, therefore,
there was no mandatory requirement and obligation to get an
attesting witness examined but still the fact remains that the
Plaintiff never admitted the execution of the gift deed and,
therefore, the same was required to be proved like any other
F document.”
16. V. Kalyanaswamy (D) by L.Rs. & Ors. v L. Bakthavatsalam
(D) by L.Rs. & Ors.,11 too, considered the effect of Sections 68 and 69,
and observed as follows:
“70. Reverting back to Section 69 of the Evidence Act, we
G are of the view that the requirement therein would be if the
signature of the person executing the document is proved to
be in his handwriting, then attestation of one attesting witness
is to be proved to be in his handwriting. In other words, in a
10
Civil Appeal No. 7082/2008, decided on 03.12.2008.
H
11
Civil Appeal No. 1021-26/2013, decided on 17.07.2020.
 ASHUTOSH SAMANTA (D) BY LRS. v. SM. RANJAN BALA 245
DASI [S. RAVINDRA BHAT, J.]

case covered Under Section 69 of the Evidence Act, the A

requirement pertinent to Section 68 of the Evidence Act that
the attestation by both the witnesses is to be proved by
examining at least one attesting witness, is dispensed with. It
may be that the proof given by the attesting witness, within
the meaning of Section 69 of the Evidence Act, may contain
B
evidence relating to the attestation by the other attesting
witness but that is not the same thing as stating it to be the
legal requirement under the Section to be that attestation by
both the witnesses is to be proved in a case covered by Section
69 of the Evidence Act. In short, in a case covered Under
Section 69 of the Evidence Act, what is to be proved as far as C
the attesting witness is concerned, is, that the attestation of
one of the attesting witness is in his handwriting. The language
of the Section is clear and unambiguous. Section 68 of the
Evidence Act, as interpreted by this Court, contemplates
attestation of both attesting witnesses to be proved. But that
D
is not the requirement in Section 69 of the Evidence Act.”
17. It is therefore clear that 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.
18. In the present case, both attesting witnesses had died. The E
two sons of the testator deposed about their presence when the will was
signed by him. They also identified the signatures of Nivas Bhuiya, who
drew and signed the will. In addition, one Phani Bhusan Bhuiya (PW-4),
son of Nivas Bhuiya, 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 F
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.
19. Besides the deposition of witnesses, the trial court relied on
the partition deed which gave effect to it, and in which, shares in G
accordance with the terms of the will were distributed. This document
was a registered one; further, the late Upendra, predecessor of the
appellant, also signed a document which acknowledged the existence of
the will.
H
246 SUPREME COURT REPORTS [2023] 2 S.C.R.

A 20. If all the above circumstances are considered in totality, and

one also keeps in mind the fact that none of the heirs of Upendra 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.
B 21. In view of the foregoing discussion, this court finds no infirmity
with the findings in the impugned judgment of the High Court. The appeal
therefore fails, and is dismissed. There shall be no order as to costs.

Divya Pandey Appeal dismissed.

(Assisted by : Shloka Sah and Shevali Monga, LCRAs)
C