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2022 Supreme(Online)(KER) 5033
HIGH COURT OF KERALA
P.SOMARAJAN, J
KUMARI @ MARY FRANCIS – Appellant
Versus
ANNAKUTTY – Respondent
RFA 465 2013
SRI.K.P.SREEKUMAR, P.B.KRISHNAN, SRI.N.AJITH, SMT.GEETHA P.MENON, SRI.P.B.SUBRAMANYAN
A Will over 30 years old can be presumed executed when produced from proper custody, negating the need for witness testimony.
Headnote:
Evidence - Partition - Indian Evidence Act - Sections 68, 69, 90 - The court concluded that an old Will produced from proper custody may be presumed executed, and the absence of attesting witnesses does not prevent its admission as evidence.
Fact of the Case:
The defendants invoked three Wills in response to a partition suit, citing their genuineness which led to the dismissal of the suit at trial. The main concern was regarding the admissibility and proof of such Wills more than 30 years old without the presence of attesting witnesses.
Finding of the Court:
The court upholds the trial court's ruling, affirming that the presumption of execution for Wills over 30 years old applies, and the burden of proof shifts to the plaintiff if no attesting witnesses are available.
Issues: Whether a Will over 30 years old, produced from proper custody, can be presumed valid without attesting witnesses being present for proof of execution.
Ratio Decidendi: The judgment established that under Sections 68 and 69 of the Indian Evidence Act, the presumption of execution applies for Wills over 30 years old, relieving the propounder from the necessity of producing all attesting witnesses.
Final Decision: The appeals were dismissed; the partition suit remains unsuccessful.
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 Singh (2009 (3) SCC 687) in support of his argument that there cannot be any application of Section 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court.
3. The issue came up before the Privy Council as early as in the year 1947 inMunnalal v. Mt. Kashibai (AIR 1947 PC 15), wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal position inKalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors. ( AIR 1968 SC 947 ). It was followed by this Court inNarayanan Radhakrishna Menon v. Narayanan Sukumara Menon (2018 (2) KLT 553). Subsequently, it was settled by a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and Another v. and State of Maharashtra and Another ( AIR 2005 SC 752 ) that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:-
“The law laid down by Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lessor quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”
(emphasis supplied)
4. It has been further reiterated by a three Judge Bench of the Apex Court inNew India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. (AIR 2016 SC 86) by holding that the judgment delivered earlier in point of time shall prevail over the judgment rendered by a co-
equal Bench on a later point of time.
5. The abovesaid principle is subject to the except
