Sudhir Agarwal, J.@mdashThis is a plaintiff''s appeal u/s 100 C.P.C. This Court, after hearing under Order XLI Rule 11, formulated following substantial question of law:
(A) For the purpose of computing the period of 20 years u/s 90 of Indian Evidence Act, 1872 (hereinafter referred to as the "Act, 1872"), what shall be the date for reckoning the period.
Heard Sri Dhruva Narayan and Sri S.K. Srivastava, Advocates for plaintiff-appellant (hereinafter referred to as the "plaintiff") and Sri Krishna Mohan, Advocate for defendants-respondents (hereinafter referred to as the "defendants").
2. During course of arguments, this Court finds that there are some more issues which, if answered in favour of plaintiff, may substantially bear on the ultimate decision of Lower Appellate Court (hereinafter referred to as the "LAC") and, therefore, are substantial questions of law, which also need be answered in this case, and they are:
(B) Whether in the facts and circumstances of this case, Section 90 at all is attracted to ''Will'' dated 16.5.1983 registered on 17.5.1983?
(C) Whether certified copy of a document i.e. ''Will'' obtained from Registry Department, can attract presumption of its being a validly executed document, containing true contents of original document, or, it has to be rejected unless formally proved with regard to its execution and attestation etc.
(D) Whether mere presumption u/s 90 of Act, 1872 would satisfy the requirement of proof of a ''Will'' without proving execution and attestation as contemplated in Section 63 of Indian Succession Act, 1925 (hereinafter referred to as the "Act, 1925") read with Section 68 of Act, 1872.
3. The plaintiff instituted Original Suit No. 166 of 1993 for possession of property in dispute, compensation and also for cancellation of ''Will'' dated 2.12.1990.
4. The plaint case, in brief is, that House No. 179 (new number 307), Bai Ka Bagh, Allahabad was owned by Dr. J.N. Samaddar (now deceased). The plaintiff and defendant No. 1, both, are real brothers and sons of Dr. J.N. Samaddar, while defendant No. 2 is the wife of defendant No. 1 and defendant No. 3 is the son of plaintiff. Dr. J.N. Samaddar acquired the property in question vide gift deed dated 26.6.1944, which at that time, was an open piece of land, whereupon he constructed a house. In the municipal record, his name was entered, as owner of disputed premises. Dr. Samaddar executed a ''Will'' dated 16.5.1983 in favour of plaintiff and aforesaid ''Will'' was registered vide Registry Bahi No. 3, Zild No. 246, Page No. 60-62 at serial No. 182, dated 17.5.1983. No property was assigned by Dr. Samaddar to any other legal heir, i.e., defendant No. 1 and his two daughters. Dr. Samaddar died on 7.6.1991, whereafter plaintiff became entitled for entire property of Dr. Samaddar, pursuant to ''Will'' dated 16.5.1983. The defendant No. 1, real brother of plaintiff, was allowed to reside in a portion of house, but he started playing fraud, and, let out premises on rent also. On account of unauthorised activities of defendants, the plaintiff initially instituted Original Suit No. 503 of 1991 for a declaration and possession but aforesaid suit was withdrawn with liberty to file fresh one, and thence, suit in question, was instituted.
5. The defendants contested suit claiming that Dr. Samaddar, by ''Will'' dated 2.12.1990, bequeathed entire property in dispute to the defendants and, therefore, plaintiff has no right over property in dispute. The suit is liable to be dismissed.
6. The Trial Court framed nine issues, and, for the purpose of present case, relevant issues No. 1, 2, 3, 4 and 9, are as under:
1 Whether the plaintiff is the sole owner of disputed house on the basis of alleged ''Will'' dated 16.5.1983?
2. Whether defendants are in possession over the disputed house as licensee?
3. Whether the plaintiff is entitled to get possession of disputed house as well as damages @ Rs. 10/- per day from the defendant?
4. Whether the suit of the plaintiff is barred by time?
9. Whether the plaintiff is entitled to get the alleged will dated 2.12.1990, cancelled, on the grounds taken in plaint?
(English translation by the Court)
7. Issue No. 1 was decided by Trial Court, observing that suit is founded on registered ''Will'' dated 16/17.5.1983, still onus He upon plaintiff to prove due execution and attestation thereof. It found that original ''Will'' alleged to have been lost, was not produced. Neither attesting witnesses were produced nor any attempt was made to prove their signatures. In nutshell, the ''Will'' dated 16/17.5.1983 was not proved at all.
8. Coming to issue No. 9, with respect to ''Will'' dated 2.12.1990, which was admittedly an unregistered document, the issue was decided against defendants, observing, that aforesaid ''Will'' was also, not proved.
9. Since both the ''Wills'', according to Trial Court''s findings, found not proved, it held that plaintiff and defendant No. 1, both, sons of Dr. J.N. Samaddar, had equal right in the property in dispute, therefore, possession of defendant No. 1, on a part of the property in dispute, is not that of a licensee, but he is a co-owner.
10. On issues No. 4 and 5, regarding limitation, and bar of suit under Order 7 Rule 3, the Trial Court found that defendants could not lead any evidence to prove the same, hence, decided the same in negative, i.e., against defendants.
11. The suit was decreed partly. Both the ''Wills'' dated 16.5.1983 and 2.12.1990, were declared void and illegal, and cancelled accordingly. For rest of the relief, suit was dismissed.
12. The plaintiff went in appeal, vide Civil Appeal No. 16 of 2008 to the extent, suit was dismissed by Trial Court. The defendants-respondents filed cross-objection to the extent, Trial Court''s judgment and decree was against ''Will'' dated 2.12.1990. The LAC vide judgment and decree dated 24.11.2009, dismissed both, i.e., appeal as well as cross objection and confirmed Trial Court''s judgment and decree.
13. Learned counsel for plaintiff urged that original copy of ''Will'', dated 16/17.5.1983, having lost, a certified copy thereof was adduced on 17.3.2005 and hence legal presumption was available to it. The LAC however held, that for attracting a provision dispensing formal proof of a document, 20 years old, the period will commence from the date of filing of suit. Since suit was filed in 1993, without filing a copy of ''Will'', though the suit founded upon the said document, unless it is proved, presumption u/s 90 of Indian Evidence Act, 1872 (hereinafter referred to as the "Act, 1872") would not be attracted. Similarly it says that original copy of ''Will'' having not been produced, it was incumbent upon plaintiff to prove execution of ''Will'', by producing witnesses and the executant(s) of ''Will''. It held that Section 63 of Indian Succession Act, 1925 (hereinafter referred to as the "Act, 1925") would not help plaintiff in any manner. LAC also said, though secondary evidence may be admissible u/s 65 of Act, 1872, but in absence of Section 90, coming into picture in this case, the document has to be proved, which the plaintiff having failed, it cannot be said that he was entitled to succeed on the basis of ''Will'' dated 16.5.1983. It is contended by the plaintiffs counsel that the entire approach of Court below is patently erroneous, illegal and contrary to statute.
14. Per contra, learned counsel for defendants defended the impugned judgments and decree by referring to the reasons assigned therein.
Findings:
15. Section 90 of Act, 1872 deals with presumption with respect to documents, which are 30 years old. However, there is an amendment in the aforesaid provision by Section 2 of U.P. Act No. 24 of 1954 w.e.f. 30.11.1954. For the purpose of present case, Section 90, as applicable in U.P., reads as under:
90. Presumption as to documents thirty years old.--(1) Where any document, purporting or proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person''s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.
Explanation.--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person''s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to have been executed or attested.
(emphasis added)
16. In order to bring in presumption u/s 90(1), following conditions, therefore, must be observed or existed:
(1) The document must have been in existence for 20 years or more;
(2) It must have come from proper custody when produced in Court;
(3) The document must be, in appearance, free from suspicion;
(4) It should purported to be in handwriting of the person and should not be anonymous.
17. However ''presumption'' u/s 90 is not obligatory on the part of the Court. The word ''may'' used in both subsections leave it to the Court, to draw such presumption or not. Obviously, if the Court decline to raise presumption, it must be for valid reasons. The words ''may presume'' has been defined in Section 4 of Act, 1872 and reads as under:
4. "May presume"--Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
(emphasis added)
18. Where the Court instead of presuming the document to have been formally proved, required its proof and declined to treat the document as proved, unless it has been proved in accordance with the procedure prescribed in law, such discretion exercised by Court, by itself, is neither illegal nor incompetent.
19. Section 90 is founded on necessity and convenience. In normal circumstances, it is extremely difficult, and sometimes, may not be possible to lead evidence, to prove handwriting, signature or execution of old documents, after lapse of a long time, i.e., 30 years (vide Section 90), (but 20 years as applicable in U.P.). It is to obviate such impossibilities and difficulties which may arise in proving an old document, the above provision has been made part of this statute.
20. Here, the issue 1, up for consideration, is limited one. So this Court shall confine its discretion only thereto, i.e. reckoning date to compute this period. It has been held that 30 years/20 years period, has to be computed, from the date the document purports to bear. The question as to from which date, period of 20 years or 30 years, as the case may be, shall reckon, came to be considered in Minu Sirkar v. Rhedoy Nath Roy, 4 C.L.R. 135. It was held that the period of 30 years shall be reckoned, not from the date on which the deed is filed in Court, but, from the date on which it having been tendered in evidence, its genuineness or otherwise becomes the subject of proof.
21. A learned Single Judge of this Court in
22. In Hari Ram v. Mutsaddi and others, 1917 Ind Cas 80, Hon''ble Mr. Justice Broadway of Punjab Chief Court relied on Minu Sirkar v. Rhedoy Nath Roy (supra) and held, "this period shall reckon from the date from which its genuineness or otherwise becomes subject of proof". Therein, suit was instituted on 3.7.1915 while defendants filed their pleas contesting suit on 9.8.1915. The Court held that it is the later date which shall reckon to count period for the purpose of attracting Section 90 of Act, 1872.
23. In Ladha Singh and others v. Musammat Hukum Devi and another, 1923 (75) Ind Cas 57, a Division Bench of Lahore High Court considered this very issue. It also relied on Minu Sirkar (supra), and held, that period is to be reckoned, not from the date on which document is put in Court, but, from the date from which, after document has been tendered in evidence, its genuineness becomes the subject of proof. These authorities were followed in
24. In
In the High Court it was pointed out that the kabuliat of 1892 (exhibit 4A) was itself at the time of the trial in 1927 over thirty years old, and that u/s 90 of the Indian Evidence Act the presumption could be made that it was executed by Korban Ali as it purports to be. At one time it was argued that Section 90 would not apply to this document by reason that it was filed in Court by the plaintiffs on November 11, 1918. Their Lordships are, however, of opinion that u/s 90 of the Indian Evidence Act the period of thirty years is to be reckoned, not from the date upon which the deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the subject of proof. This was decided in the case of Minu Sirkar v. Rhedoy Nath Roy, (1879) 5 C.L.R. 135.
25. This Court also considered the question, when the period of 20 years/30 years, as the case may be, shall reckon in
26. However the mere factum of reckoning of the period of 20/30 years to attract presumption u/s 90 by itself would not be sufficient unless other requisites of Section 90 are also attracted in the case so as to justify presumption thereunder. This will cover question 13'' also. In other words, the manner in which question ''A'' is answered, by itself, shall not result in vitiating the appellate judgment unless this Court finds that Section 90 as a whole applies to the ''Will'' in question. However, I shall answer this question after dealing with question ''C''.
27. The question ''C'' would be, whether this presumption of Section 90 of Act, 1872 would be applicable to a certified copy of ''Will'' dated 16.5.1983. Admittedly, original copy of ''Will'' dated 16/17.5.1983 has never been produced, before Court below. Instead a certified copy has been filed.
28. The plaintiff has taken a stand that original copy of ''Will'' was handed over to defendant No. 1. What was the occasion for handing it over to defendants has not been made clear. The plaintiff is the eldest son of Late Sri J.N. Samaddar. His assertion that original document was kept with defendant No. 1, wherefrom has been misplaced or damaged or lost, is apparently suspicious, improbable and uncreditworthy. It has rightly not been believed, by Courts below. I find no error in the approach of Courts below in considering suspicious circumstances that a father, not bequeathing his property to the son who is residing with him, made entire property subject to ''Will'' in favour of another son who is admittedly in service, residing elsewhere, still would like to keep original document in custody of such son upon whom he is not showing any confidence. He (plaintiff) has also admitted that father never told him (plaintiff) about aforesaid ''Will''. Once reason for not producing original document is disbelieved, it would immediately, render admissibility of secondary evidence, impermissible. A certified copy thereupon shall render inadmissible being against Section 64/65 of Act, 1872.
29. In order to attract Section 90 subsection (1) of Act, 1872 the first requirement, in my view, would be that document in question which has been adduced in evidence is the original document, i.e., primary evidence and not the secondary one. In
30. In Basant Singh v. Baijnath Prasad, 62 I.A. 180, the Privy Council reiterated that, a document, if produced, is a copy admitted u/s 65 as secondary evidence and is produced from proper custody, over 30 years old, only signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant presumption of due execution of original document. The Privy Council negatived the contention, that, where a copy of ''Will'' has been admitted, the Court is entitled to presume genuineness of such ''Will'' which purports to be 30 years old. Relying on the words "where any document purporting or proved to be 30 years old", in Section 90, the Privy Council said that, production which entitles the Court to draw presumption as to execution and attestation, is of the original and not its copy. In other words it was held that Section 90 requires a particular document to be proved before the Court and in regard to that only, the Court may draw statutory presumption. If the document produced is a copy, admitted u/s 65 as secondary evidence and it is produced from proper custody, is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine. The two decisions of Calcutta and this Court taking otherwise view were not approved. The Privy Council approved the Nagpur decision in Shripuja v. Kanhayalal (supra), in which, the Judicial Commissioner held that production of a copy was not sufficient to justify presumption of due execution of original u/s 90.
31. In Kahi Nimbaji v. Bapurao, AIR 1950 Nag 6, the Court said that when a 30 years old document is lost and a certified copy or other copy is produced it can prove the contents but not execution. This was followed in
32. The above view later on came to be approved by Supreme Court in
33. In Kalidindi Venkata Subbaraju (supra) the Apex Court made its observations in respect of a certified copy of document produced and referring to Basant Singh v. Baijnath Prasad (Supra) and
34. In
16. So far as applicability of presumption arising from Section 90 of the Evidence Act in respect of copy of the old document is concerned, the earliest decision of the Indian Court was made in 1880 in
17. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts is that presumption u/s 90 does not apply to a copy or a certified copy even though thirty years old: but if a foundation is laid for the admission of secondary evidence u/s 65 of the Evidence Act by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may u/s 90 be presumed to be genuine.
35. In view of above reasoning the Court upheld the view taken by High Court that presumption u/s 90 would not be available on the certified copy produced by defendants and, hence it was rightly declined. The Court also said:
We may also indicate that it is the discretion of the Court to refuse to give such presumption in favour of a party, if otherwise, there is occasion to doubt due execution of the document in question.
36. The above view however has to be applied in U.P. with slight variation. The U.P. Amendment in Section 90(1) has made difference only of the period from 30 years to 20 years but for all other purposes, it is the same. A Division Bench of this Court in
....learned counsel relied upon the amendment made to Section 90 by the U.P. Civil Laws (Amendment) Act, which permits a presumption to be drawn when a certified copy of a document, which has been registered under the Registration Act, is produced in evidence. However, the U.P. Civil Laws (Amendment) Act introduced Section 90-A also. Sub-section (2) of this new section lays down that the presumption shall not be made in respect of any document which is the basis of a suit or of a defence and is relied upon in the plaint or in the written statement. It is not disputed by the learned counsel for the defendants-appellants that the sale-deed in question was the basis of the defence and was relied upon by the defendants in their written statement. Nothing therefore, in Section 90 or Section 90-A of the Evidence Act as amended by the U.P. Civil Laws (Amendment) Act, 1954 will come to the assistance of the defendants-appellants and the Court will not draw a legal presumption in favour of the defendants-appellants that it was executed by Smt. Reoti Devi.
37. Here the Court clearly misconstrued Section 90(2) by reading it alongwith Section 90-A, though both are independent.
38. The correctness of aforesaid decision was doubted. The matter was considered by a Full Bench in
39. Same view was reiterated by a learned Single Judge (N.N. Mithal, J.) in
40. Thus presumption u/s 90(1) is attracted in respect of original document. However, sub-section (2) is applicable in respect of certified copies but it would be attracted only when certified copy has been adduced in evidence in accordance with procedure prescribed in law, or after satisfying the requirement of law, i.e., Sections 64 and 65 of Act, 1872 and not otherwise. Under Act, 1872 certified copy as such is not admissible in evidence being a secondary evidence unless the procedural requirement thereof is satisfied. It is only when a certified copy has been adduced in evidence in accordance with requirement of the statute, the question of presumption u/s 90(2) would be attracted and not otherwise. Section 90(2) cannot be read in isolation. It has to be read in harmony with other provisions of the Act, 1872.
41. The above discussion also leads to the inference that, (1) presumption u/s 90 is discretionary, though the discretion is to be exercised judiciously; (2) sub-section (1) of Section 90 (as amended in U.P. or otherwise) is applicable only in respect to original document and not copies or certified copies; (3) the document must be 20/30 years old and must have come from proper custody; (4) the presumption is in respect of execution and attestation of document as also the handwriting of person concerned; (5) sub-section (2) (as available in U.P.) is applicable to certified copies when the same are adduced in evidence in accordance with law, i.e., as per the requirement of Sections 64 and 65 of Act, 1872.
42. In the present case, admittedly original ''Will'' was not produced. It is not the case of plaintiff that certified copy was placed on record after satisfying the requirements of Section 64/65 of Act, 1872. The mere fact that it was a certified copy, by itself, would not make it admissible in evidence since it is secondary evidence and can be adduced in evidence only as provided in statute and not otherwise.
43. There is one more aspect. There may be a circumstance where at the time when suit is filed, founded on a document, original whereof is not adduced in evidence, and since presumption u/s 90 would not have been available as 20 years period had not passed, the party who is interested to take advantage of presumption u/s 90, may delay, in one or the other manner, waiting for the time by which a document is put in trial so as to claim delayed reckoning of period and by that time the period of 30/20 years may have elapsed. In my view, such a party shall not be entitled for presumption u/s 90 of Act, 1872.
44. There is an authority where looking to the conduct of party such presumption has been denied. In Chunnulal and another v. Puna and others, AIR 1923 Nag 169, A Division Bench held that the conduct of party may justify refusal, to draw presumption and extend advantage of Section 90, in favour of such party, whose conduct is not found bonafide. The Court said:
The lower Court is of opinion that the application was delayed deliberately with a view to take advantage of the provision of Section 90 of the Evidence Act. We see no reason to hold that this opinion is not justified. There is no reasonable explanation about the delay after 1910 in making the application for probate. There is no evidence as to the custody of the ''Will'' before 1907. We fully agree with the lower Court in refusing to apply the provisions of Section 90 in this case.
45. The presumption being discretionary I am inclined to take the view that if circumstances so justify and it is deducible therefrom that taking procedural and otherwise delay in legal proceedings, a party is trying to take advantage of some statute solely for the reason of such delay, which may be attributable to party himself, it may be a guiding factor to decide whether such presumption u/s 90 should be drawn or not. To be more emphatic, the Court would be justified in denying presumption in such a case.
46. Now so far as the present case is concerned, it cannot be doubted that requirement of Section 90 is not satisfied in the case in hand and, therefore, the plaintiff was not entitled for insisting upon the Courts below to draw a presumption in respect of ''Will'' dated 16.5.1983 whereupon he founded his entire case. The question ''C'' is answered accordingly.
47. Now I come to questions ''B'' and ''D'' together since both can be answered simultaneously.
48. For answering both these questions the Court proceeds to assume that even if the plaintiff would have satisfied requirement of law for drawing presumption u/s 90, whether in the case of a ''Will'' the proof thereof would be conclusive by virtue of presumption u/s 90 or a ''Will'' will have to be dealt with separately by attracting Section 68 of Act, 1872 read with Section 63 of Act, 1925.
49. In the context of ''Will'', particularly when it was a registered document, though not compulsorily registrable under the statute, the Privy Council in
50. The Apex Court had the occasion to look into this aspect in
51. In
52. Then again the matter came to be considered in
33. The burden of proof that the ''Will'' has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the ''Will'' and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of ''Will'', a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See
53. In reference to Section 90 vis-�-vis ''Will'', recently the Apex Court in
The provisions of Section 90 of the Indian Evidence Act keeping in view the nature of proof required for proving a ''Will'' have not application. A ''Will'' must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Indian Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.
54. The Court further said that since an order granting probate is a judgment in rem, the Court must also satisfy its conscience before it passes an order. Unlike other documents, even animus atte standi is necessary ingredient for proving the attestation. If a ''Will'' is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court''s conscience and propounder of the ''Will'' has to remove all suspicious circumstances to satisfy that ''Will'' was duly executed by testator where-for cogent and convincing explanation in respect of suspicious circumstances shrouding the making of ''Will'' must be offered. The Court also said:
It may be true that the will was registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
55. This decision in my view scaled the entire issues and it may not be necessary to refer to any other authority thereafter. Both the questions ''B'' and ''D'' therefore, are answered accordingly against appellant. Question ''B'' is returned by holding that unless a ''Will'', even if registered, is proved in respect of requisite conditions as provided in Section 63 of Act, 1925 no amount of presumption can take the place of proof. Similarly, question ''D'' is also answered by holding that mere presumption u/s 90 would not satisfy the requirement of proof of ''Will'' without proving the necessary conditions as provided in Section 63 of Act, 1925, read with Section 68 of Act, 1872.
56. Coming to the factual aspect of this case, it is not in dispute that except filing certified copy of ''Will'' sometime in 2005, the plaintiff adduced no witness to prove attestation or execution of ''Will'' and since there was no attempt to prove the ''Will'' as required u/s 63 and Section 90 having no application in the case in hand, it is obvious that ''Will'' dated 1983 remained disproved and has rightly been held so, by Courts below. In the result, it cannot be said that the Courts below have erred in rejecting the ''Will'', made basis by plaintiff, for his entire claim. The appeal lacks merit. It is dismissed with costs throughout.
