Wills must be proved in accordance with specific statutory requirements, and the presumption of validity based on age does not apply.

JUDGMENT

S. RAVINDRA BHAT, J.

Background

1. This appeal, by special leave, challenges a judgment and order of the Calcutta High Court, (F.A. No. 664/1972, dated 02.02.2007) which affirmed a judgment and decree by the trial court (O.S. No. 7/1969, dated 31.05.1972) allowing a petition for grant of letters of administration under Section 278 of the Indian Succession Act, 1925 (hereinafter, “Act”). The aggrieved defendant is the appellant before this court.

2. The facts in brief are that one Gosaidas Samanta (hereinafter, “testator”) had three sons – Upendra, Anukul and Mahadev. He died, survived by his three sons and widow Bhagbati Das, and left behind a will dated 16.11.1929. The testator bequeathed his estate among three heirs – his sons Anukul and Mahadev, and his grandson Shibu, the son of Upendra (who was not granted any share). On 21.02.1945, a partition deed was drawn between these three co-sharers. This arrangement was apparently accepted by Upendra, who executed a disclaimer document, in respect of one part of the properties, sold by Shibu, out of his share.

3. In 1952, alleging that he was in occupation of a part of the properties owned by the testator, and that he had purchased them from Upendra, the present appellant filed a suit for partition and possession. The suit was dismissed on the finding that the present appellant had no title. (Title Suit No. 647/1952, dated 29.08.1957) That judgment was however reversed by the appellate court which passed a preliminary decree for partition. (Title Appeal No. 1027/1957, dated 17.02.1959) Upon a further appeal by the present respondent (the son of Mahadev), the High Court noticed that although the will had been relied upon, it was neither probated nor were letters of administration sought in respect of it. (Appeal from Appellate Decree No. 950/1959, dated 27.11.1967) The High Court cast doubts about the possession of the respondent herein.

4. Having regard to the High Court’s finding, especially the absence of a probate or letters of administration, the respondents herein approached the competent court for letters of administration6. At the time of trial, none of the attesting witnesses was alive. The trial court therefore, relied upon the depositions of two of the sons of the testator as well as the deposition of one Surendra Nath Bhowmick who deposed to having seen the testator duly sign the will.

5. The administration proceedings were contested by the present appellant, i.e., the purchaser of the properties from Upendra. He contended that the proceedings were not maintainable as relief was sought after an inordinately long period of time. The trial court relied upon the depositions of witnesses as well as the documents produced which included the registered deed of partition, dated 21.02.1945, which expressly mentioned the will in question. The trial court also relied upon a document, i.e., deed executed by Upendra, which also contained a reference to the will.

6. Having regard to the materials, the court recorded a finding that the respondent was entitled to letters of administration. An appeal against that judgment was rejected (Impugned judgment). Therefore, the present appeal.

Arguments

7. It was argued on behalf of the appellant by Mr Ranjan Mukherjee, Ld. Advocate, that the courts below could not have relied upon the will and granted the letters of administration in the absence of any evidence to substantiate that the will was executed properly. It was urged that there were suspicious circumstances surrounding the execution of the will which cast a doubt about its genuineness given that the propounder had raised various contentions, including one for adverse possession in a previous suit for partition. It was also argued that the courts below could not have accepted the will on the basis of Section 90 of the Evidence Act, 1872 and relied upon the partition deed of 1945 nor upon the ‘Nabadi’ said to have been executed by Upendra. It was urged that the inordinate delay in a