Sir John Beaumont.-This is a consolidated appeal by special leave from two judgments and two decrees dated the 16th December, 1937, and 22nd December, 1937, respectively of the High Court of Judicature at Nagpur, which reversed two judgments and two decrees dated the 21st June, 1934, and the 15th June, 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 possession of three muafi fields. The Subordinate Judge decreed both suits but, on appeal, the High Court dismissed them.

The title of the plaintiffs in both suits is traced from one Balwant Singh, who died in the year 1907. The respondents claim through one Bahadur Singh, the younger brother of the father of Balwant Singh. In the first appeal, it is not disputed that Bahadur Singh was the owner of the property in suit and had power to dispose of it by will, the only question being whether he effectively did so.

Bahadur Singh died on the 13th April, 1890, having made a will dated 30th March, 1890, under which he bequeathed his property to his daughter Jankibai, and her minor son, Narain. He left no son or descendant of a son.

The learned Subordinate Judge held that the burden rested upon respondents 1 and 2, who were the daughters of Jankibai (the other respondents claiming through them) to prove the will of Bahadur, and that, whilst he could presume under section 90 of the Evidence Act that the will had been properly executed and attested, he could not, under that section, presume that the testator when he made his will, was of sound disposing mind. He accordingly held the will not proved. In appeal the High Court held that the presumption which could be drawn under section 90 extended to testamentary capacity and held the will proved.

Section 90 of the Evidence Act is in the following terms:

“Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the 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 by the persons by whom it purports to be executed and attested.”

The terms of section 114 must also be noted:

“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

The will of Bahadur was more than thirty years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the will could be presumed under section 90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator’s mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of section 90, since a will cannot be said to be “duly” executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about

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