ASHUTOSH SAMANTA (D) BY LRS. & ORS. versus SM. RANJAN BALA DASI & ORS. on 14 March 2023

1. This appeal, by special leave, challenges a judgment and orderof the Calcutta High Court,[1] which affirmed a judgment and decree bythe trial court[2] allowing a petition for grant of letters of administrationunder 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 awill dated 16.11.1929. The testator bequeathed his estate among threeheirs – his sons Anukul and Mahadev, and his grandson Shibu, the son ofUpendra (who was not granted any share). On 21.02.1945, a partitiondeed was drawn between these three co-sharers. This arrangementwas apparently accepted by Upendra, who executed a disclaimerdocument, in respect of one part of the properties, sold by Shibu, out ofhis share.

3. In 1952, alleging that he was in occupation of a part of theproperties owned by the testator, and that he had purchased them fromUpendra, the present appellant filed a suit for partition and possession.The suit was dismissed on the finding that the present appellant had notitle.[3] That judgment was however reversed by the appellate court whichpassed a preliminary decree for partition.[4] Upon a further appeal by thepresent respondent (the son of Mahadev), the High Court noticed thatalthough the will had been relied upon, it was neither probated nor wereletters of administration sought in respect of it.[5] The High Court cast doubts about the possession of the respondent herein.

1 F.A. No. 664/1972, dated 02.02.2007

2 O.S. No. 7/1969, dated 31.05.1972.

3 Title Suit No. 647/1952, dated 29.08.1957.

4 Title Appeal No. 1027/1957, dated 17.02.1959.

5 Appeal from Appellate Decree No. 950/1959, dated 27.11.1967.

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A4. Having regard to the High Court’s finding, especially the absenceof a probate or letters of administration, the respondents hereinapproached the competent court for letters of administration[6]. At thetime of trial, none of the attesting witnesses was alive. The trial courttherefore, relied upon the depositions of two of the sons of the testatoras well as the deposition of one Surendra Nath Bhowmick who deposedBto having seen the testator duly sign the will.

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5. The administration proceedings were contested by the presentappellant, i.e., the purchaser of the properties from Upendra. Hecontended that the proceedings were not maintainable as relief was soughtafter an inordinately long period of time. The trial court relied upon theCdepositions of witnesses as well as the documents produced whichincluded the registered deed of partition, dated 21.02.1945, whichexpressly mentioned the will in question. The trial court also relied upona document, i.e., deed executed by Upendra, which also contained areference to the will.D

6. Having regard to the materials, the court recorded a findingthat the respondent was entitled to letters of administration. An appealagainst that judgment was rejected.[7] Therefore, the present appeal.

Arguments

E7. It was argued on behalf of the appellant by Mr RanjanMukherjee, Ld. Advocate, that the courts below could not have reliedupon the will and granted the letters of administration in the absence ofany evidence to substantiate that the will was executed properly. It wasurged that there were suspicious circumstances surrounding the executionof the will which cast a doubt about its genuineness given that theFpropounder had raised various contentions, including one for adversepossession in a previous suit for partition. It was also argued that thecourts below could not have accepted the will on the basis of Section 90of the Evidence Act,1872 and relied upon the partition deed of 1945 norupon the ‘Nabadi’ said to have been executed by Upendra. It was urgedGthat the inordinate delay in approaching the court ought to have defeatedthe claim for letters of administration.

8. On the other hand, Mr Bikash Kar Gupta, Ld. Advocate,contended on behalf of the respondents that the present case is one 6 By filing O.S. No. 79/1969.H7 Impugned judgment.

ASHUTOSH SAMANTA (D) BY LRS. v. SM. RANJAN BALADASI [S. RAVINDRA BHAT, J.]

where the courts have rendered concurrent findings of fact, which thiscourt should not interfere with. It was urged that the will was duly provedand that the question of delay in approaching the court for letters ofadministration did not arise.

9. The respondent had relied upon the record, and the findingsrendered by the trial court, as well as the High Court, and contendedthat both courts consistently recorded satisfaction that the ingredientsnecessary to prove the will had been satisfied, and the courts did not resttheir findings only on the basis of a presumption that the document wasold.

Analysis and Findings

10. From the factual discussion, it is clear that the testator hadextensive properties. The appellant is a purchaser of part of the properties.Those properties were sold by Upendra, the testator’s son. In the will,Upendra had not been bequeathed any portion of the properties by thetestator; instead Shibu, his son, was an heir and one of the legatees. Therespondent herein filed a suit claiming one-third share; the appellantclaimed to be in possession. Though in those proceedings, both courtsheld that he was not in possession, yet, the plaintiff’s (the presentrespondent) title was held not proved as he had not sought probate oradministration of the testator’s properties. Therefore, the respondent, insubsequent proceedings, claimed letters of administration. Both courtshave held the will to be genuine and upheld the claim for administrationby the respondent.

11. The main argument of the appellant is that the application forletters of administration was made after a considerable delay, and thatthe courts below should not have relied on Section 90 of the EvidenceAct, 1872, which reads as follows:

“Section 90 - Presumption as to documents thirty years old Where any document, purporting or proved to be thirty yearsold, is produced from any custody which the Court in theparticular case considers proper, the Court may presume thatthe signature and every other part of such document, whichpurports to be in the handwriting of any particular person, isin that person’s handwriting, and, in the case of a documentexecuted or attested, that it was duly executed and attested A

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[2023] 2 S.C.R.

Aby the persons by whom it purports to be executed andattested.

Explanation-Documents are said to be in proper custody ifthey are in the place in which, and under the care of theperson with whom, they would naturally be; but no custody isBimproper if it is proved to have had a legitimate origin, or thecircumstances of the particular case are such as to rendersuch an origin probable.

This explanation applies also to section 81.”

12. This court, in M.B. Ramesh (D) by L.Rs. v K.M. VeerajeCUrs (D) by L.Rs. & Ors.,[8]while dealing with a similar argument regardingapplicability of Section 90 in the case of proof of will, held as follows:

“At the same time we cannot accept the submission on behalfof the Respondents as well that merely because the will wasmore than 30 years old, a presumption under Section 90 ofDthe Indian Evidence Act, 1872 (‘Evidence Act’ for short) oughtto be drawn that the document has been duly executed andattested by the persons by whom it purports to have beenexecuted and attested. As held by this Court in Bharpur Singhv. Shamsher Singh reported in 2009 (3) SCC 687, aEpresumption regarding documents 30 years old does not applyto a will. A will has to be proved in terms of Section 63(c) ofthe Succession Act read with Section 68 of the Evidence Act.

That takes us to the crucial issue involved in the present case,viz. with respect to the validity and proving of the concernedFwill. A Will, has to be executed in the manner required bySection 63 of the Succession Act. Section 68 of the EvidenceAct requires the will to be proved by examining at least oneattesting witness. Section 71 of the Evidence Act is anotherconnected section “which is permissive and an enablingsection permitting a party to lead other evidence in certainGcircumstances”, as observed by this Court in paragraph 11of Janki Narayan Bhoir v. Narayan Namdeo Kadam reportedin 2003 (2) SCC 91 and in a way reduces the rigour of themandatory provision of Section 68. As held in that judgmentSection 71 is meant to lend assistance and come to the rescue H8 Civil Appeal No. 1071/2006, decided on 03.05.2013.

of a party who had done his best, but would otherwise be letdown if other means of proving due execution by otherevidence are not permitted.”

13. In view of the above decision, wills cannot be proved only onthe basis of their age – the presumption under Section 90 as to theregularity of documents more than 30 years of age is inapplicable whenit comes to proof of wills, which have to be proved in terms of Sections63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act,1872.

14. There are often situations when wills which otherwise mayhave satisfied the requirements of being attested, as provided by law,cannot be proved in terms of the said two provisions, for the reason thatthe attesting witnesses are not available, or if one of the witnesses denieshaving attested the will. Sections 69 and 71 of the Evidence Act, 1872then come to the aid of the propounder. Section 69 reads as follows:

“Section 69 - Proof where no attesting witness found If no such attesting witness can be found, or if the documentpurports to have been executed in the United Kingdom, itmust be proved that the attestation of one attesting witness atleast is in his handwriting, and that the signature of the personexecuting the documents is in the handwriting of that person.”

Section 71 reads as follows:

“Section 71 - Proof when attesting witness denies the execution If the attesting witness denies or does not recollect theexecution of the document, its execution may be proved byother evidence”

15. In Babu Singh & Ors. v. Ram Sahai alias Ram Singh[9], theCourt held as follows with regard to Section 69:

“It would apply, inter alia, in a case where the attesting witnessis either dead or out of the jurisdiction of the court or keptout of the way by the adverse party or cannot be traced despitediligent search. Only in that event, the will may be proved inthe manner indicated in Section 69 i.e. by examining witnesses A

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Awho were able to prove the handwriting of the testator orexecutant. The burden of proof then may be shifted to others.

18. Whereas, however, a will ordinarily must be proved keepingin view the provisions of Section 63 of the Succession Act and Section68 of the Act, in the event the ingredients thereof, as noticedBhereinbefore, are brought on record, strict proof of execution andattestation stands relaxed. However, signature and handwriting, ascontemplated in Section 69, must be proved.”

Section 69 was also considered in K. Laxmanan v. ThekkayilPadmini & Ors[10]:C

“Since both the attesting witnesses have not been examined,in terms of Section 69 of the Act it was incumbent upon theAppellant to prove that the attestation of at least one attestingwitness is in his handwriting and that the signature of theperson executing the document is in the handwriting of thatDperson. DW 3, who was an identifying witness also in Ext. B-2, specifically stated that he had not signed as an identifyingwitness in respect of Ext. B-2 and also that he did not knowabout the signature in Ext. B-2. Besides, considering thenature of the document which was a deed of gift and evenassuming that no pleading is filed specifically denying theEexecution of the document by the executant and, therefore,there was no mandatory requirement and obligation to get anattesting witness examined but still the fact remains that thePlaintiff never admitted the execution of the gift deed and,therefore, the same was required to be proved like any otherdocument.”F16. V. Kalyanaswamy (D) by L.Rs. & Ors. v L. Bakthavatsalam(D) by L.Rs. & Ors.,[11]too, considered the effect of Sections 68 and 69,and observed as follows:

“70. Reverting back to Section 69 of the Evidence Act, weGare of the view that the requirement therein would be if thesignature of the person executing the document is proved tobe in his handwriting, then attestation of one attesting witnessis to be proved to be in his handwriting. In other words, in a 10 Civil Appeal No. 7082/2008, decided on 03.12.2008.H11 Civil Appeal No. 1021-26/2013, decided on 17.07.2020.

ASHUTOSH SAMANTA (D) BY LRS. v. SM. RANJAN BALADASI [S. RAVINDRA BHAT, J.]

case covered Under Section 69 of the Evidence Act, therequirement pertinent to Section 68 of the Evidence Act thatthe attestation by both the witnesses is to be proved byexamining at least one attesting witness, is dispensed with. Itmay be that the proof given by the attesting witness, withinthe meaning of Section 69 of the Evidence Act, may containevidence relating to the attestation by the other attestingwitness but that is not the same thing as stating it to be thelegal requirement under the Section to be that attestation byboth the witnesses is to be proved in a case covered by Section69 of the Evidence Act. In short, in a case covered UnderSection 69 of the Evidence Act, what is to be proved as far asthe attesting witness is concerned, is, that the attestation ofone of the attesting witness is in his handwriting. The languageof the Section is clear and unambiguous. Section 68 of theEvidence Act, as interpreted by this Court, contemplatesattestation of both attesting witnesses to be proved. But thatis not the requirement in Section 69 of the Evidence Act.”

17. It is therefore clear that in the event where attesting witnessesmay have died, or cannot be found, the propounder is not helpless, asSection 69 of the Evidence Act, 1872 is applicable.

18. In the present case, both attesting witnesses had died. Thetwo sons of the testator deposed about their presence when the will wassigned by him. They also identified the signatures of Nivas Bhuiya, whodrew and signed the will. In addition, one Phani Bhusan Bhuiya (PW-4),son of Nivas Bhuiya, deposed. In his evidence he deposed to havingbeen present when the testator and the two attesting witnesses signedthe will; he was able to identify their signatures. This witness was educatedand a graduate. The circumstances when the will was signed, where itwas signed and who all were present, were deposed by him. Additionally,the witness also withstood cross- examination.

19. Besides the deposition of witnesses, the trial court relied onthe partition deed which gave effect to it, and in which, shares inaccordance with the terms of the will were distributed. This documentwas a registered one; further, the late Upendra, predecessor of theappellant, also signed a document which acknowledged the existence ofthe will.

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A20. If all the above circumstances are considered in totality, andone also keeps in mind the fact that none of the heirs of Upendra contestedthe grant of letters of administration, there can be only one conclusion,i.e., that the will was duly executed, and the propounder/respondent hereinwas successful in proving it.

B21. In view of the foregoing discussion, this court finds no infirmitywith the findings in the impugned judgment of the High Court. The appealtherefore fails, and is dismissed. There shall be no order as to costs.

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Divya Pandey

(Assisted by : Shloka Sah and Shevali Monga, LCRAs)

Appeal dismissed.

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