Merely Because Will Is 30-Year-Old Document, It Can’t Be Presumed To Have Been Duly Executed U/S.90 Of Evidence Act: Chhattisgarh High Court

The High Court was considering an appeal filed under Section 100 of the CPC whereby the appellants/plaintiffs challenged the impugned judgment dismissing the appeal and affirming the judgment of the trial Court.

The Single Bench of Justice Bibhu Datta Guru held, “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. Rather, it is mandatory that the will be proved by attesting witnesses in compliance with the aforesaid statutory provisions.”

Advocate Hemant Kumar Agrawal represented the Appellant, while Government Advocate Santosh Singh represented the Respondent.

Factual Background

The plaintiffs preferred a suit seeking a declaration of title, possession and permanent injunction, pleading that the plaintiffs’ grandfather, Mahadev, son of Late Amrit Ahir, executed a will and got it registered in the office of the Sub-Registrar, thereby bequeathing his land ownership rights, i.e., the suit land, to Ramavatar Ahir, son of his younger brother Jagdev Ahir. Jagdev had two sons, Ramavatar and Ramkishun. Mahadev, Jagdev, and Ramavatar have all passed away. Upon the death of Ramavatar, the plaintiffs came into possession of the suit land as owners and got their names recorded in the revenue records. The first Defendant is the real uncle of the plaintiffs, who, without any right, in collusion with revenue officers and employees, got his name recorded in the suit land along with the plaintiffs, without their knowledge and consent. In the year 2007–08, the first defendant, Ramkishun, forcibly took possession of the suit land and was preparing to harvest the crops sown by him.

In the said Civil Suit, the defendant submitted his written statement and denied the plaintiff’s averments. It was claimed that Mahadev never executed any will during his lifetime in favour of the plaintiffs’ father, Ramavatar. The alleged will was forged and fabricated. After the death of Jagdev, the defendant claimed that he had been in possession of the suit land. It was also claimed that after the death of Mahadev, Jagdev partitioned the entire property situated at Village Paradol equally between Ramkishun and Ramavatar, giving a half share to each, and since then, the first defendant has been in possession and cultivation of his half share of the land.

The Trial Court dismissed the suit filed by the plaintiffs, holding that the Will produced by the plaintiffs was not proved in accordance with the legal requirements. Accordingly, the finding on the issue of whether the Will executed by Late Mahadev was valid was recorded as Not proved. Against the said judgment and decree, the plaintiffs filed a Civil Appeal before the appellate Court, which dismissed the same by maintaining the judgment of the trial Court. Thus, the appeal came to be filed by the appellants/plaintiffs.

Reasoning

The Bench took note of the fact that the principal basis for claiming title over the suit land was stated to be a 30-year-old document, i.e. a will of the year 1958. However, the said will was not 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.

Considering that the scribe and the attesting witnesses to the will were no longer alive, the Bench noted that no effort was made to prove the will in the manner prescribed under Section 63 of the Indian Succession Act, read with Sections 68 and 69. “Mere registration of the will does not dispense with the mandatory requirement of proof by attesting witnesses”, it added.

The Bench reiterated 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. Consequently, the will Exhibit P-2 cannot be held to be duly proved or legally valid, and the claim of title based solely thereon is unsustainable in the eyes of law”, it noted.

The Bench further explained that the scope of interference in a Second Appeal under Section 100 of the Code of Civil Procedure is extremely limited. “Interference is permissible only when the appeal involves a substantial question of law. 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”, the Bench stated.

The Bench stated that the appellants failed to raise any substantial question of law, which is required under Section 100 of the CPC. The Bench noted that the Second Appeal did not involve any substantial question of law as contemplated under Section 100 of the CPC and thus no case was made out by the appellants. Finding the judgments passed by the Trial Court as well as by the First appellate Court to be just and proper, the Bench dismissed the appeal.

Cause Title: Rampyare v. Shivshankar (Neutral Citation: 2026:CGHC:5238)

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