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2024 Supreme(Online)(Mad) 49729
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.B.BALAJI, J
Madhivanan (Died) – Appellant
Versus
Dhanaraj – Respondent
S.A.No.559 of 2017|C.M.P.No.13792 of 2017|A.S.No.4 of 2014|O.S.No.29 of 2001
For the Appellants/Petitioners: Mr.Venkataraman for Mr.N.Krishnamurthy
For the Respondents: Mr.J.Cyril Mathias Vincent for M/s.Fox Mandal Associates
The presumption under Section 90 of the Indian Evidence Act does not apply to Wills, necessitating proof of execution as per Section 63(c) of the Indian Succession Act.
Headnote:(A) Indian Evidence Act, 1872 - Section 90 - Indian Succession Act, 1925 - Section 63(c) - Second Appeal regarding the proof of execution of a Will dated 25.09.1975, which was denied by the defendant citing a later Will dated 15.10.1986. The Trial Court upheld the plaintiffs' title based on the earlier Will, invoking the presumption under Section 90 due to its age. The First Appellate Court reversed this, asserting that the plaintiffs failed to prove the execution of the Will as required by law. (Paras 5, 8, 20)
(B) Presumption - The court emphasized that the presumption under Section 90 does not apply to Wills, especially when execution is denied, necessitating proof of due execution and attestation as per Section 63(c) of the Indian Succession Act. (Paras 24, 26)
(C) Judicial Precedents - The court discussed conflicting judicial interpretations regarding the applicability of Section 90 to Wills and highlighted the necessity for the Supreme Court to resolve these inconsistencies. (Paras 26)
Facts of the case:
The plaintiffs sought to declare their title and recover possession of property based on a Will from 1975, which the defendant disputed by referencing a later Will. The Trial Court initially favored the plaintiffs, but the First Appellate Court found the evidence insufficient.
Findings of Court:
The court upheld the First Appellate Court’s ruling that the plaintiffs did not adequately prove the Will's execution and thus dismissed the appeal.
Issues: The primary issue was whether the presumption under Section 90 applies to the proof of Wills.
Ratio Decidendi: The court concluded that the presumption of execution under Section 90 does not extend to Wills when execution is disputed, necessitating compliance with Section 63(c) of the Indian Succession Act for proof.
Result: Second Appeal dismissed; leave granted to appeal to the Supreme Court.
| Table of Content |
|---|
| 1. factual background of the case. (Para 4) |
| 2. dispute over the validity of the will. (Para 6 , 7 , 8 , 9 , 10) |
| 3. arguments regarding presumption under section 90. (Para 11 , 12 , 13 , 14 , 15) |
| 4. court's analysis on the application of section 90. (Para 18 , 19 , 20 , 21) |
| 5. need for supreme court clarification. (Para 23 , 24 , 25 , 26) |
| 6. final dismissal of the second appeal. (Para 27) |
..Respondents 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.29 of 2001 on the file of the Principal Subordinate Judge, Puducherry.
For Appellants : Mr.Venkataraman for Mr.N.Krishnamurthy For Respondents : Mr.J.Cyril Mathias Vincent for M/s.Fox Mandal Associates
JUDGMENT
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.29 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 could be applied to the said Will. On that premise, the Trial Court decreed the suit and upheld the title of the plaintiff
