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1946 Supreme(SC) 30
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SIMONDS, MR. M. R. JAYAKAR AND SIR JOHN BEAUMONT.
MUNNALAL - Appellant
Versus
MST. KASHIBAI - Respondents
On Appeal from the High Court at Nagpur.
Decided On : July 29, 1946.
Solicitors for appellants: T. L. Wilson & Co.
Solicitors for respondents Nos. 3 and 4 in first appeal: Hy. S. L. Polak & Co.
Section 90 of the Evidence Act's presumption of "due execution" for ancient documents includes testamentary capacity. Additionally, possession held under an adverse claim of title for the statutory period bars subsequent suits for recovery under the Limitation Act.
Headnote:(A) Indian Evidence Act, 1872 - Section 90 and Section 114 - Presumption as to ancient documents - Testamentary capacity - Whether the term "duly executed" in Section 90 includes a presumption that the testator was of sound disposing mind - A will rational in character, executed in the presence of witnesses, leads to a presumption of sanity and understanding - Such presumption is justified under Section 90 as a will cannot be said to be "duly" executed by a person who was not competent to execute it, and is further fortified by Section 114 regarding the common course of natural events and human conduct. (Paras 10-12)
(B) Limitation Act - Section 144 - Adverse possession - Where possession is assumed under a claim of title adverse to the owner and continues for a period exceeding the statutory limit, the claim for recovery of possession is barred by limitation - Possession based on a claim of right, even if the title is not proven in revenue records, constitutes adverse possession if it is hostile to the owner's title and the circumstances of how possession was assumed are known. (Paras 21-24)
Facts of the case:
Two suits for possession of property were filed. In the first, the validity of a thirty-year-old will was contested, specifically whether the statutory presumption of due execution under the Evidence Act extended to the testamentary capacity of the testator. In the second, the appellant claimed ownership of fields, asserting that the occupant held only a maintenance grant and that possession became wrongful after the occupant's death. The occupants had remained in possession for approximately 40 years based on a claim of title derived from the aforementioned will, despite revenue records listing them only as occupiers.
Findings of Court:
Regarding the first appeal, the court found that the presumption of due execution under Section 90 of the Evidence Act extends to testamentary capacity, provided the will is rational and executed before witnesses. Regarding the second appeal, the court found that the possession was adverse to the appellant's title from its inception, as it was based on a claim of ownership under a will, and thus the suit was barred by limitation.
Issues: 1. Whether the statutory presumption of "due execution" under Section 90 of the Evidence Act includes a presumption of the testator's testamentary capacity. 2. Whether a suit for possession is barred by limitation when the defendant's possession was based on an adverse claim of title for a period exceeding twelve years.
Ratio Decidendi: A will that is rational and executed before witnesses creates a presumption of sanity under Section 90 (as "duly" implies competence) and Section 114 of the Evidence Act. Furthermore, where possession is held under a claim of right adverse to the true owner for the statutory period, the owner's right to recover the property is extinguished under the Limitation Act, regardless of whether the adverse claim could have been proven in a civil suit.
Result: Both appeals dismissed.
Legal Category Hierarchy
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evidence law
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presumptions
- ancient documents
- testamentary capacity
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presumptions
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property law
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possession
- adverse possession
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possession
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limitation law
- statutory bars
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succession law
- wills
Judgement
Consolidated Appeal (No. 13 of 1945), by special leave, from two judgments and two decrees of the High Court (December 16 and 22, 1937) which reversed two judgments and two decrees of the Court of the Subordinate Judge, First Class, Khandwa (June 15 and 21, 1934).
These two appeals, which were consolidated, arose out of two suits, the first of which was brought by the appellants in the first appeal, or their predecessors in title, claiming possession of a house and certain land and the house thereon. In the second appeal the sole appellant claimed possession of three muafi fields.
The trial court decreed both suits, but, on appeal, the High Court (Stone C. J. and Bose J.) dismissed them.
The facts appear from the judgment of the Judicial Committee. In the first appeal the principal question for determination was whether a will, which was thirty years old, and was produced out of proper custody, and as to which both courts below had held that a statutory presumption as to due execution arose under s. 90 of the Indian Evidence Act, should be presumed in the absence of any evidence to the contrary to have been made by a person of competent understanding.
1946. July 2, 3. Pringle K.C. and Ralph Parikh for the appellants in the first appeal and the sole appellant in the second appeal. With regard to the will of Bahadur Singh, the question is whether " duly executed " in s. 90 of the Evidence Act covers only formalities, or whether it involves a presumption of testamentary capacity—that everything has been done to render the document valid and binding. No such presumption as to testamentary capacity should have been drawn under s. 90. The English rules of evidence do not apply, and the High Court erred in relying on Symes v. Green (( 1859) 1 Sw. & Tr. 401). The Evidence Act is exhaustive, and the construction put on s. 90 by the Subordinate Judge—that the statutory presumption applies only as to due execution, but not as to testamentary capacity— is right. [Reference was made to Sris Chandra Nandy v. Rakhalananda Thakur (( 1940) L.
R. 68 I. A. 34, 45.), Mst. Afsar Begum v, Saiyed Muhammad Yusuf (( 1929) I. L. R. 5 Luck . 526.), Kotayya v. Vardhamma (( 1930) A. I. R. (Mad.) 744.) and Nidh Kaur v. Gian Singh (( 1938) A, I. R. (Lah.) 55.).]
Rewcastle K.C., Khambatta K.C. and Jayakar for respondents 3 and 4 in the first appeal. If the argument for the appellants were accepted no weight would be given to the word “duly " in s. 90 of the Evidence Act. " Duly “executed means effectively executed without any incapacitating circumstances, and the presumption is in favour of sanity. The provision “duly " in s. 90 makes it clear that the presumption applies equally to testamentary capacity Mortimer on Probate Law and Practice, 1st ed., pp. 58-9, citing Symes v. Green (1). There was here no evidence to rebut the presump tion of testamentary capacity ; the will is on its face rational, is old and is proved to have been signed. [Reference was made to Robins v. National Trust Co. ([ 1927] A. C. 515.) on concurrent findings.]
Khambatta K.C. followed.
Pringle K.C. replied. " Duly" has a strict meaning referring to formalities.
The respondents to the second appeal did not appear.
July 29. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT. This is a consolidated appeal, by special leave, from two judgments and two decrees, dated December 16, 1937, and December 22, 1937, respectively, of the High Court of Judicature at Nagpur, which reversed two judgments and two decrees dated June 15, 1934, and the June 21, 1934, respectively, of the Court of the Subordinate Judge, First Class, Khandwa.
The two appeals, which are consolidated, arise out of two suits in ejectment. The suit to which the first appeal relates was brought by the appellants, or their predecessors in title, claiming possession of a house and certain land in a town and the house thereon. In the suit to which the second appeal relates the appellant claimed poss
