A registered WILL that is over 30 years old carries a presumption of due execution, and requirements around attesting witnesses may not be fatal if the document is adequately proved otherwise.

JUDGMENT :

Gautam Kumar Choudhary, J.

This appeal is against the order passed in Probate Case No.5/1993 whereby and whereunder application for probate has been dismissed.

2. As per the case of the legatee/beneficiary, testator- Late Hari Prasad Sao executed a registered WILL in favour of the appellant and other sons on 14.08.1961. Testator- Hari Prasad Sao, who died on 16.06.1981, had executed a registered WILL with respect to the properties detailed in Schedule A of the probate application.

3. Appellant is the son of the testator and the contesting respondent nos.12 – 16, are step brothers and sisters of the appellant. Testator- Hari Prasad Sao had three sons namely Jagdish Sao, Motichand and Jyotichand by first wife, and five sons from the second wife. Respondents are sons and daughters from the first wife, whereas appellant is the son of testator from his second wife.

4. The application for probate was contested by opposite party nos. 12 – 17, who filed a joint objection/written statement inter alia on the ground that Hari Prasad Sao died on 16.06.1981, but he had never made any WILL and testament in favour of the applicant and the alleged WILL was a forged and fabricated document.

5. On the basis of the pleadings of the parties, learned Probate Court framed the following issues: -

I. Whether the WILL dated 14.08.1961 of Late Hari Prasad Sao is the last WILL and whether it is genuine?

II. Whether the applicant has proved execution of the abovementioned WILL as per law or not?

III. Whether petitioner entitled for grant of probate of the abovementioned WILL or not?

6. Application for probate was dismissed on the ground that the attesting witnesses were not examined and although it has been stated that testator intended to bequeath all his immovable property, but the details have not been given.

Secondly, learned Probate Court observed that although WILL was executed for all remaining movable and immovable properties in favour of five sons from second wife, but in Schedule A, Holding No.143, House Nos.215 and 216 have been mentioned. There were no further details of the property of Holding Nos.277, 278, 162 and 266 which has been mentioned in the WILL itself. The absence of description of these holdings, suggested that testator had no knowledge about the property for which WILL was executed.

Third ground on which the probate application was disallowed, was that attesting witnesses namely Gaur Chand Sarkar and Hiren Chand Chatterjee were not examined.

7. It was contended on behalf of applicant that attesting witnesses had died and the document was more than 30 years old therefore, presumption was liable to be drawn under Section 90 of the EVIDENCE ACT . This argument did not find favour for the reason that there was mandatory requirement of examination of attesting witnesses and the Court was not bound to draw a presumption of execution of the document under Section 90 of the EVIDENCE ACT .

8. It is argued by the learned counsel on behalf of appellant that there was a statutory presumption under Section 90 of the EVIDENCE ACT that the document being 30 years old, it was duly executed and the onus was on the other side to lead evidence to impeach credit of its due execution. Learned Court erred in casting burden of proof of 30 years old document on the applicant, that too when it was registered document and was produced f