No Presumption Under Section 90 Evidence Act for 30-Year-Old Wills: Chhattisgarh High Court

Introduction

In a significant ruling for succession and property law practitioners, the High Court of Chhattisgarh has firmly established that the presumption of due execution available to documents over 30 years old under Section 90 of the Indian Evidence Act, 1872, does not extend to Wills. This decision, delivered in the second appeal Rampyare and Anr v. Ramkishun and Anr (SA No. 183 of 2021), underscores the mandatory requirement for strict proof of Wills through attesting witnesses, irrespective of their antiquity. Justice Bibhu Datta Guru, in a single-judge bench, dismissed the appeal, upholding the concurrent findings of the trial court and first appellate court that a 1958 registered Will had not been adequately proved. The case arose from a familial property dispute where the appellants claimed title based on the Will executed by their grandfather, only for the respondent uncle to challenge its validity, alleging forgery and prior partition of ancestral lands. This judgment reinforces the rigorous evidentiary standards for Wills, potentially impacting how old testamentary documents are litigated in inheritance disputes across India.

The ruling aligns with Supreme Court precedents and serves as a reminder that Wills, being revocable until the testator's death, demand heightened scrutiny to prevent fraud in property transfers. For legal professionals handling probate or succession matters, this decision highlights the pitfalls of relying solely on a document's age, emphasizing compliance with Section 63 of the Indian Succession Act, 1925, and Sections 68 and 69 of the Evidence Act.

Case Background

The dispute traces its roots to a family in Village Paradol, Karhipara, under Manendragarh tehsil in Korea district, Chhattisgarh, involving agricultural land originally held by Amrit Ahir, who had two sons: Mahadev and Jagdev. Mahadev, who had no male heirs and only a daughter, allegedly executed a registered Will on August 12, 1958, bequeathing his share of the land, along with livestock and utensils, to his nephew Ramavatar, the son of Jagdev. The Will was registered on November 28, 1958, at the Sub-Registrar's office in Manendragarh. Jagdev had two sons: Ramavatar and Ramkishun. Ramavatar's wife was Sukharana, and their sons—Rampyare and Shivshankar—form the appellants in this case.

Mahadev passed away on October 6, 1988, after which Ramavatar's name was mutated in the revenue records per the Will. Ramavatar died on July 25, 1998 (noted in the judgment with a possible typographical error referencing 1958, but clarified as 1998 via the death certificate Exhibit P-4). Following this, Rampyare and Shivshankar claimed ownership and had their names entered in the revenue records. However, Ramkishun, the appellants' uncle and respondent No. 1, allegedly colluded with revenue officials to get his name jointly recorded without the appellants' knowledge. By 2007-08, Ramkishun is said to have forcibly dispossessed the appellants from the suit land and begun cultivating it.

The appellants instituted Civil Suit No. 48A/2016 before the Civil Judge Class-I, Manendragarh, seeking declaration of title, possession, and permanent injunction against Ramkishun and the State (as respondent No. 2, representing the Collector). They relied on the 1958 Will (Exhibit P-2) as the foundation of their claim, asserting continuous possession for over 40 years post-Mahadev's death. Ramkishun contested the suit, denying the Will's execution and alleging it was forged. He claimed the property was ancestral, partitioned first between Mahadev and Jagdev during Amrit's lifetime, and later between Ramavatar and himself after Mahadev and Jagdev's deaths. According to Ramkishun, both brothers held equal shares, and he had been in possession of his half since the partition, with joint revenue entries persisting until his brother's death.

The trial court, after evaluating evidence including witness testimonies and documents, dismissed the suit on July 19, 2016, holding that the Will was not proved per legal standards under Section 63 of the Succession Act and Sections 68 and 69 of the Evidence Act. It specifically found Issue No. 1—whether the 1958 Will was valid—not proved. The appellants appealed to the First Additional District Judge, Manendragarh, in Civil Appeal No. 30A/2019, but the appeal was dismissed on January 1, 2020, affirming the trial court's decree. Aggrieved, the appellants filed the second appeal under Section 100 of the Code of Civil Procedure, 1908, before the High Court on grounds including the Will's age exceeding 30 years and the unavailability of attesting witnesses.

This timeline—from the Will's execution in 1958 to the High Court's judgment pronounced on January 29, 2026 (as per the judgment reference 2026:CGHC:5238)—illustrates a protracted family feud over ancestral farmland, emblematic of many rural inheritance battles in India where oral partitions and old documents often collide with modern evidentiary rules.

Arguments Presented

The appellants, represented by advocate Hemant Kumar Agrawal, mounted a multi-pronged defense centered on possession, antiquity, and statutory presumptions. They emphasized that the suit land had been in their continuous possession for over 40 years before the 2007-08 dispossession, underscoring their good-faith claim. The core of their argument hinged on the Will's registration and age: executed and registered in 1958, it qualified as a 30-year-old document under Section 90 of the Evidence Act. With the scribe (Tekchand Jain) and attesting witnesses (Rajdhar and Ramlakhan Singh) deceased, they contended that due execution should be presumed, as the document emanated from proper custody. They invoked Supreme Court authority in Muddasani Venkata Narsaiah (Dead) through LRs v. Muddasani Sarojana (2016) 12 SCC 288, which they interpreted as supporting presumptions for signatures and execution in favor of the propounders. Additionally, they cited the Madhya Pradesh High Court's decision in Goverdhandas Agrawal v. Gopibai Agrawal (2008) 1 MPLJ 425, arguing that the trial court erred by ignoring Section 90 while referencing Sections 68, 69, and 101. The appellants urged the High Court to set aside the lower courts' orders, declaring the Will valid and restoring their title.

On the other side, Ramkishun denied any knowledge or validity of the Will, portraying it as a post-facto fabrication by the appellants to usurp ancestral property. He detailed a history of partitions: Amrit's land divided between Mahadev and Jagdev, with each in separate possession; post-Mahadev's death, his share divided equally between Ramavatar and Ramkishun as Class I heirs (since Mahadev had no sons). Ramkishun asserted joint cultivation during lifetimes but clear post-death divisions, with him maintaining possession of his half-share continuously. He highlighted Mahadev's equal treatment of both nephews and lack of special favor toward Ramavatar. Critically, he challenged the evidentiary basis, noting no living attesting witnesses and insufficient proof under mandatory provisions. The State, as respondent No. 2, did not actively contest but was joined for revenue record corrections. Ramkishun's written statement framed the suit as baseless, urging dismissal on grounds of forgery and pre-existing title via partition.

Witness testimonies bolstered the respective sides. For the appellants, PW-1 (Rampyare) and PW-2 (Shivshankar) affirmed the Will's execution in favor of their father, while PW-3 (Rachhpal) and PW-4 (Lalman) supported the bequest but admitted not witnessing the signing. The respondent relied on the absence of direct proof and his own possession evidence.

Legal Analysis

Justice Bibhu Datta Guru's analysis meticulously dissected the proof of the Will, rejecting the appellants' reliance on Section 90 while affirming the stringent requirements under testamentary law. The court observed that while the Will was indeed over 30 years old and from proper custody, this did not trigger the presumption of due execution and attestation under Section 90. Instead, Wills demand "strict compliance" with Section 63 of the Indian Succession Act, which mandates execution by the testator in sound mind, signing or affixing a mark in the presence of at least two attesting witnesses who also sign in his presence. This is corroborated by Section 68 of the Evidence Act, requiring at least one attesting witness to be examined, or secondary evidence under Section 69 if none are available (e.g., proving the testator's handwriting and witnesses' existence via other means).

The judgment drew heavily on Supreme Court precedents to delineate why antiquity alone cannot validate a Will. In M.B. Ramesh (dead) by LRs v. K.M. Veeraje Urs (dead) by LRs (2013) 7 SCC 490, the Apex Court explicitly held: "A presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act." This case clarified that Section 90's leniency for general documents—presuming signatures and execution if produced from proper custody—cannot override the public policy safeguards for Wills, given their potential for abuse in altering inheritance. The court quoted paragraph 17 of Ramesh to emphasize that even for aged Wills, formal proof is indispensable.

Similarly, Ashutosh Samanta (Dead) by LRs v. Ranjan Bala Dasi (2023) 19 SCC 448 reinforced this, stating in paragraphs 11-13 that Wills "cannot be proved only on the basis of their age," reiterating Ramesh and distinguishing Section 90's scope. The High Court noted the rationale: a Will "speaks only from the death of the testator and remains revocable during his lifetime," making its genuineness unverifiable by mere age, unlike static contracts. The appellants' cited cases ( Muddasani and Goverdhandas ) were distinguished as not directly addressing Wills' unique proof burdens.

The court scrutinized the evidence: PW-1 and PW-2's testimonies were self-serving recitals of execution without personal attestation knowledge, while PW-3 and PW-4 explicitly did not witness it. No secondary evidence under Section 69—such as proving handwriting or witnesses' signatures via contemporaries—was adduced, despite the scribe and attesters' demise. Mere registration, the court held, proves nothing beyond authentication of the document's lodging, not its contents or execution validity.

On the appeal's scope, Justice Guru invoked Section 100 CPC's limitation to "substantial questions of law," refusing re-appreciation of facts. Concurrent findings by lower courts were not perverse, as per State of Rajasthan v. Shiv Dayal (2019) 8 SCC 637, which limits interference unless findings ignore pleadings, misread evidence, or defy law. Here, no such perversity was found; the appellants' questions boiled down to factual re-evaluation.

This analysis not only resolves the dispute but clarifies a common misconception in probate practice: age eases general document proof but not for Wills, where fraud risks in family settings necessitate rigor. It distinguishes Wills from deeds or agreements, where Section 90 often aids, emphasizing testamentary intent's sanctity.

Key Observations

The judgment is replete with incisive observations underscoring the evidentiary threshold for Wills. Key excerpts include:

• "The principal basis for claiming title over the suit land is stated to be a 30-year-old document, namely a will of the year 1958. However, the said will has not been duly proved by the appellants through witnesses in accordance with the provisions of Section 63 of the Indian Succession Act and Sections 68 and 69 of the Indian Evidence Act. Therefore, merely on the ground that the will is a 30-year-old document, it cannot be presumed to have been duly executed under Section 90 of the Indian Evidence Act."

• "It is further well settled that the presumption contemplated under Section 90 of the Indian Evidence Act in respect of documents more than 30 years old does not apply to a will, as a will is required to be proved by strict compliance with statutory provisions governing its execution and attestation. A will speaks only from the death of the testator and remains revocable during his lifetime; therefore, its genuineness cannot be presumed merely on account of its antiquity."

• On the evidence gap: "The testimonies of P.W.-1 and P.W.-2 merely state the factum of execution of the will, while P.W.-3 and P.W.-4 admittedly did not witness its execution. The scribe and the attesting witnesses to the will are no longer alive, yet no effort has been made to prove the will in the manner prescribed under Section 63 of the Indian Succession Act read with Sections 68 and 69 of the Indian Evidence Act."

• Addressing registration: "Mere registration of the will does not dispense with the mandatory requirement of proof by attesting witnesses."

• On appeal limits: "Concurrent findings of fact recorded by both the Courts cannot be interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law."

These quotes encapsulate the court's philosophy: evidentiary rigor trumps convenience in safeguarding inheritance.

Court's Decision

The High Court unequivocally dismissed the second appeal, upholding the impugned judgments of the trial court (July 19, 2016) and first appellate court (January 1, 2020). Justice Bibhu Datta Guru concluded: "Accordingly, the present appeal is liable to be and is hereby dismissed." No substantial question of law under Section 100 CPC was found, as the challenge pertained to factual findings on Will proof, which were concurrent and evidence-based.

The practical effects are profound. The appellants' suit for title, possession, and injunction stands rejected, affirming Ramkishun's possession claims via partition. No costs or further orders were specified, leaving revenue records potentially unchanged pending execution proceedings.

For future cases, this ruling mandates proactive strategies in proving aged Wills: propounders must secure secondary evidence early, such as handwriting experts or affidavits from contemporaries, even if witnesses are deceased. It deters "antiquity-only" defenses in probate suits, likely increasing litigation burdens but enhancing reliability in succession disputes. In rural India, where oral Wills or lost documents abound, practitioners may advise clients on registering codicils or modernizing estate planning to avoid such pitfalls. Broader implications include reinforcing Supreme Court jurisprudence, potentially cited in similar High Court matters, and cautioning against over-reliance on Section 90 in testamentary contexts. Ultimately, it upholds the balance between accessibility and fraud prevention in India's civil law framework, ensuring Wills reflect true intent rather than opportunistic claims.

This decision, pronounced on January 29, 2026, arrives at a time when inheritance litigation surges amid urbanization and family fragmentations, offering clarity for advocates navigating Evidence Act nuances in property battles.