A document 30 years old and produced from proper custody is presumed to be genuine.

JUDGMENT :

K.B. Panda, J. - The Plaintiff has filed this appeal against the dismissal of her suit based on an application u/s 276 of the Indian Succession Act for grant of a probate of a registered will dated 28-9-1946 (Ext. 1/a).

2. The testator is one Madanmohan who admittedly died on 23-12-1946 while he was aged about 71. The beneficiary, now the propounder of the will, is his daughter named Mst. Radha Hota. It is resisted by the other three daughters of late Madanmohan on the ground that it is not a genuine will and that their father was not mentally and physically fit to execute a will of the nature as alleged at that time while he was in sinking health. Be it stated here that another daughter of late Madanmohan has remained indifferent.

3. The learned Subordinate Judge framed four issues of which the material one is issue No. 3 which runs thus:

3. Whether the alleged will is genuine and valid?

The Plaintiff examined four witnesses of whom herself is P.W. 3 and the Defendants examined two witnesses of whom D.W. 2 Jogendra Satpathy is the husband of one of the sisters named Dutika and D.W. 1 is his co-villager.

4. The learned Subordinate Judge dismissed the suit on the ground that the execution and attestation of the will has not been properly proved; that there are accompanying suspicious circumstances regarding free execution of the will; that the will (Ext. 1/a) had not been produced at any time before during abolition of Bhogra proceedings and settlement proceedings and that there was no justification for executing the will in favour of one of the daughters to the exclusion of the others.

5. The will (Ext. 1/a) was scribed by the deed-writer Sridhar Udgata on 28-9-1946 at Patna State as it then was. The stamp papers worth Rs. 15/- (six sheets in all) have been obtained in the name of Madanmohan the very day on 28-9-1946. The two attesting witnesses are Anandamohan Bohidar and Bihari Lal. The registration and execution of the will was identified on behalf of the Plaintiff by Anandamohan Bohidar of Bolangir and Bihari Lal of Bhaler. It is in evidence that the scribe or the deed and the two attesting witnesses are all dead. The Plaintiff examined a petition-writer (P.W. 2) who has identified the handwriting of the scribe Sridhar Udgata and one of the attesting witnesses, namely, Anandamohan Bohidar who was also a fellow deed-writer in the Ex state of Bolangir. The document Ext. 1/a was tendered in evidence on 21-2-1977. Thus by the time it was tendered, it had become a document of more than 30 years old. As such the presumption of genuineness arising out of any such document should follow. Admittedly, it has come from the custody of the propounder who was the only daughter attending to the diseased testator. The learned Court seems to have lost sight of the provisions of Section 90 of the Evidence Act, 1963 which provides that:

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 band-writing of any particular person, is in that person's hand writing, 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.

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 wold naturally be, hut no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to Section 81.

Their Lordships of the Privy Council in AIR 1936 15 (Privy Council), have laid down that

The period of 30 years, u/s 90 of the Act is to be reckoned not from the date upon which the deed is filed in the Court but from the date on which, it having been tendered in e