Summary
A 1929 will bequeathed the testator's estate to two sons and a grandson, excluding a third son; a purchaser of properties from the excluded son contested a 1969 petition for letters of administration filed after an earlier partition suit failed for want of probate. Both attesting witnesses had died, and the trial court and the Calcutta High Court granted letters on the evidence of the testator's sons, the scribe's son who saw the signing, a registered 1945 partition deed giving effect to the will, and the excluded son's own acknowledgment of it. The Supreme Court dismissed the appeal: the thirty-year presumption under Section 90 of the Evidence Act does not apply to wills, but where attesting witnesses are dead Section 69 permits proof of attestation and signature by other evidence, which was done here.
Issues
- Whether a will whose attesting witnesses have died can be proved for the grant of letters of administration through witnesses to its execution and documents acknowledging it, and whether the presumption under Section 90 of the Evidence Act, 1872 or delay in seeking letters of administration affects the grant.
Provisions considered
- Section 90, Indian Evidence Act, 1872The presumption of due execution for documents thirty years old does not apply to a will, which must be proved under Section 63(c) of the Succession Act and Section 68 of the Evidence Act. (¶¶ 11, 12, 13)
- Sections 68, 69 and 71, Indian Evidence Act, 1872Where no attesting witness can be found, including where both have died, Section 69 permits proof that the attestation of one witness is in his handwriting and the executant's signature is in his; the rigour of Section 68 is thus relaxed and the propounder is not helpless. (¶¶ 14, 15, 16, 17)
- Sections 63(c) and 278, Indian Succession Act, 1925Execution in the manner required by Section 63 was established through the deposition of persons present at the signing, and letters of administration under Section 278 were rightly granted. (¶¶ 1, 13, 18, 20)
Held
- Both attesting witnesses having died, the testator's two sons deposed to their presence when he signed and identified the scribe's signature, and the scribe's educated son deposed to being present when the testator and both attesting witnesses signed, identified their signatures, described the circumstances and withstood cross-examination; together with the registered partition deed distributing shares as per the will and the excluded son's own acknowledgment of the will, and the fact that none of his heirs contested the grant, the only conclusion is that the will was duly executed and proved. (¶¶ 18, 19, 20)
Result
Appeal dismissed; Calcutta High Court judgment dated 02.02.2007 affirming the grant of letters of administration in respect of the will dated 16.11.1929 upheld; no order as to costs.