Rami vs Sohan Singh

G.R. Majithia, J.

Defendant has come up in second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Court whereby the suit of the plaintiffs for grant of a declaration to the effect that they are the ownersinpossession of the suit land as heirs on the basis of registered Will dated January 25, 1926 executed by Smt. Rajji deceased and that the mutation No. 1319 dated August 1, 1958 had been wrongly sanctioned in favour of the defendant was decreed.

The facts : To appreciate the relationship of the parties inter se reference to the following pedigreetable will be helpful :

Smt. Rajji widow of Jethu was the owner of land measuring 86 Kanals 5 Marlas situated in the revenue estate of Sherpura Khurd. She bequeathed her estate through a registered Will dated January 25, 1926 in favour of Badan Singh and Kaka Singh sons of Deva Singh and Mohinder Singh son of Kishan in equal shares. She died in the month of October, 1936. Mutation of inheritance was sanctioned in favour of the defendant on August 1, 1958. The plaintiffs were in possession of the suit land prior to the death of the testator and even thereafter. Their possession was duly reflected in the record of rights, but the defendantappellant started interfering in their possession necessitating the filing of the suit for declaration on May 9, 1974. The defendant controverted the allegations made in the plaint and pleaded that the Will dated January 25, 1926 was surrounded by suspicious circumstances.

On the pleadings of the parties, the trial Judge framed the following issues

(1) Whether Smt. Rajji executed a valid Will dated 25.1.1926 in favour of Badan Singh, Kaka Singh and Kishan Singh ? OPP

(2) Whether the plaintiffs have become the owners of the land in dispute by way of adverse possession ? OPP

(3) Whether the suit is maintainable in the present form ? OPP

(4) Whether the suit is within time ? OPP

(5) Whether the plaintiffs are estopped from filing the present suit by their act and conduct ? OPD.

(6) Relief.

Issue No. 1 was answered in favour of the plaintiffs and it was held that Smt Rajji had executed a valid Will dated January 25, 1926 in favour of Badan Singh, Kaka Singh sons of Deva Singh and Mohinder Singh son of Kishan Singh; issues No. 3, 4, and 5 were dealt with together and were answered in favour of the plaintiffs; issue No. 2 was not decided in view of the finding that a valid Will was executed by Smt. Ranjji in favour of the plaintiffs. Accordingly the suit was decreed.

Before the first appellate Court the only question raised was that the execution of the Will dated January 25, 1926 Ex. P14, was not validly proved. The learned appellate Judge held that the Will was produced by one of the beneficiaries and a presumption under Section 90 of the Evidence Act could be raised that the document was executed and attested by the person by whom it was purported to have been executed and attested. He further found that the plaintiffs remained in possession of the suit land throughout and that mutation dated August 21, 1958. Ex. D6, was attested in favour of the defendant without notice to the plaintiffs and that the attestation of the mutation in favour of the defendant casts no cloud on the right of he plaintiffs since they continue to remain in uninterrupted possession of the suit land. Their possession was never disturbed by the defendant. On these premises, the first appeal was dismissed by the appellate Judge.

In this appeal, learned counsel for the appellant submitted that the execution of Will, Ex. P. 14, was not duly proved and the presumption under Section 90 of the Evidence Act was wrongly drawn. The submission is devoid of merit. Section 90 of the Act says that where any document purporting or proved to be thirty year old is produced from proper custody, the Court may presume that signatures in every other part of such document which purports to be in handwriting of any particular person, is in that person''s handwriting and in case of a document executed or attested, it was duly executed and attested by the person by whom it purports to be executed and attested. A presumption under Section 90 covers the question of due execution. In Mahendra Nath Surul and another v. Netai Charan Ghosh and another, (1944) 215 I.C. 124, it was held by the Calcutta High Court that Section 90 of the Evidence Act applies to Wills also and Presumption under Section 90 would be raised and it was laid down thus :

"We have no hesitation in holding, as was held in Gobinda Chandra Pal v. Pulin Behary, 98 Ind. Cas. 147, that Section 90 according to its plain terms applies to Wills. Is as to other documents. There are no suspicious circumstances in the present case; on the contrary the fact that Will was duly registered after it had been executed removes any ground for suspicion.

Similar view was expressed by the Madras High Court in (Swarna) Kotayya v. Karancheti Vardhman and others, AIR 1930 Madras 744, wherein it was held thus :

"The presumption arising under Section 90 applies even to the fact that the testator was in a sound disposing state of mind, for the phrase ''duly executed'' if effect is to be given to the word ''duly'' means execution by a person legally competent to execute the document.

In the instant case, the testator Suit. Rajji lived for more than thirty years after the execution of the Will dated January 25, 1926, Ex. P14, and it cannot even remotely be urged that the Will was not voluntary. Moreover, registration of a document is a solemn act and a certificate appended by the Registering Officer under Section 60 of the Registration Act is a relevant piece of evidence for proving its execution. The Will was duly registered and a presumption will be raised that all official acts were validly performed. In Piara v. Futtu, AIR 1929 Lahore 711, it was held by a Division Bench of the Lahore High Court as under :

"The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty is to attend to the parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Therefore the certificate endorsed on the sale deed by the Registering Officer under Section 60, Registration Act, is a relevant piece of evidence for proving its execution."

For the reasons recorded above, I find no merit in this appeal and the same is dismissed but without any order as to costs.