JUDGMENT

The defendants in a suit for partition contested the suit by relying on three Wills - Exs.B1, B3 and B4 as that of their parents – father Paul and mother Sara. All these Wills were found genuine by the trial court and consequently, the suit for partition was dismissed, against which the plaintiff came up.

2. Ext.B1 is a registered Will dated 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. Necessarily, the question came up for consideration is when a Will or Codicil is produced from proper custody having an oldage of more than 30 years, is it permissible to draw presumption as to its execution, whether it is necessary to summon atleast one of the attesting witnesses in proof of its execution and when the testament is found to be more than 30 years oldage and produced from a proper custody, whether the propounder can wriggle out of the liability to prove the testament in accordance with the mandate under Section 68 of the Act by resorting to the presumption that can be drawn under Section 90 of the Indian Evidence Act . The learned counsel for the appellant/plaintiff relied on the decision inBharpur Singh & Ors v. Shamsher