The presumption under Section 90 of the Indian Evidence Act does not apply to Wills, necessitating proof of execution and attestation by the propounder.

JUDGMENT :

P.B. BALAJI, J.

PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 22.01.2015 passed in A.S.No. 4 of 2014 on the file of the III Additional District Judge, Puducherry, reversing the judgment and decree dated 04.02.2014 made in O.S.No. 9 of 2001 on the file of the Principal Subordinate Judge, Puducherry.

1. The Second Appeal has been filed against the judgment and decree dated 22.01.2015 passed in A.S.No. 4 of 2014 on the file of the III Additional District Judge, Puducherry, reversing the judgment and decree dated 04.02.2014 made in O.S.No. 9 of 2001 on the file of the Principal Subordinate Judge, Puducherry.

2. The unsuccessful plaintiffs in a suit for declaration of their title and for recovery of possession of the suit properties from the 1st defendant. The plaintiffs additionally sought for the relief of future mesne profits and also the relief of permanent injunction restraining the 2nd defendant from taking any steps to register the Will with the 3rd defendant, namely the Joint Sub Registrar, Puducherry.

3. The parties are described as per their litigating status before the Trial Court.

4. The plaintiffs succeeded before the Trial Court. Aggrieved by the judgment and decree of the Trial Court, the 2nd defendant preferred an appeal in A.S.No. 4 of 2014. The First Appellate Court allowed the appeal and set aside the judgment and decree passed by the Trial Court. It is aggrieved by the reversal findings rendered by the First Appellate Court that the plaintiffs have come by way of the present Second Appeal.

5. The entire issue in the Second Appeal only revolves around the proof of due execution and attestation of the alleged Will dated 25.09.1975. In fact, the plaintiffs' entire claim to title over the suit property is only based on the said Will dated 25.09.1975.

6. The suit was resisted by the 1st defendant on the ground that the testatrix, Adilakshmi had executed a subsequent Will on 15.10.1986, bequeathing the schedule of the property to the 2nd defendant and therefore no rights would flow under the earlier Will which had been superseded by the subsequent Will.

7. The 2nd defendant also filed a counter statement at the stage of deciding the permission to be granted to the plaintiffs to sue as indigent persons. In the said counter statement, the 2nd defendant has specifically denied the execution of the alleged Will dated 25.09.1975. That apart, the 2nd defendant has stated that the testatrix, Adilakshmi executed a Will dated 15.10.1986 in his favour, considering that he was the person who was looking after the testatrix during her old age, attending to all her medical and other needs, till her death. It is thus evident that on such denial of execution of the Will dated 25.09.1975, it was incumbent on the plaintiffs to prove the said Will to have been duly executed and attested in accordance with Section 63(c) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act. Admittedly, in the present suit, none of the two attesting witnesses have been examined. However, without even an issue being framed, the Trial Court took the defendants by surprise and gave a finding that the Will dated 25.09.1975 need not be proved since it was a document which is more than 30 years old and the presumption under Section 90 of the Indian Evidence Act could be applied to the said Will. On that premise, the Trial Court decreed the suit and upheld the title of the plaintiffs and directed the 1st defendant to vacate and hand over the vacant possession of the suit property.

8. The First Appellate Court however held that Section 90 of the Registration Act would not apply to the subject Will and moreover, when there was a subsequent Will said to have been executed by the same testatrix, as had been pleaded, though the same was also not proved, the plaintiffs could not take advantage of the weakness of the defendants' case and admittedly having not proved the Will dated