Isabella Mariam

The High Court of Chhattisgarh Single Bench of Justice Bibhu Datta Guru has dismissed a second appeal challenging concurrent findings that a 1958 registered Will relied on to claim title and possession over agricultural land was not proved in accordance with law. The dispute arose after the claimants said the land had been bequeathed to their predecessor and alleged a family member wrongfully secured a revenue entry and later took possession; the opposing party denied any bequest, alleging fabrication and asserting equal inheritance and partition. The Court held that the presumption for documents over 30 years old under Section 90 of the Indian Evidence Act does not extend to Wills, since a Will must be proved through strict compliance, and its authenticity cannot be presumed merely because it is old, as it operates only on death and remains revocable.

The dispute arose from a civil suit filed by the plaintiff’s seeking declaration of title, possession, and permanent injunction in respect of agricultural land situated at Village Paradol. The plaintiffs claimed title on the basis of a registered will dated 12.08.1958, allegedly executed by their grandfather in favour of their father. It was pleaded that following the death of the testator and subsequently the beneficiary, the plaintiffs’ names were mutated in revenue records and they remained in possession until the defendant allegedly dispossessed them.

The defendant contested the suit, denying execution of the will and asserting that the property was ancestral, jointly held, and subsequently partitioned equally between the two brothers. It was alleged that the will was forged and fabricated. The trial court dismissed the suit holding that the will was not proved in accordance with law. The first appellate court affirmed the findings. Aggrieved, the plaintiffs preferred a second appeal under Section 100 of the Code of Civil Procedure, contending that the will, being more than 30 years old, attracted the presumption under Section 90 of the Indian Evidence Act.

The Court observed that “the principal basis for claiming title over the suit land is stated to be a 30-year-old document, namely a will of the year 1958.” It recorded that “the said will has not been 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.”

Referring to the evidence, the Court noted that “the testimonies of P.W.-1 and P.W.-2 merely state the factum of execution of the will, while P.W.-3 and P.W.-4 admittedly did not witness its execution.” It further observed that “the scribe and the attesting witnesses to the will are no longer alive, yet no effort has been made to prove the will in the manner prescribed under law.”

On the applicability of Section 90 of the Evidence Act, the Court stated that “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.” The Court recorded that “it is mandatory that the will be proved by attesting witnesses in compliance with the statutory provisions.”

Placing reliance on binding precedents, the Court observed that “the presumption regarding documents which are 30 years old does not apply to a will.” It further stated that “a will has to be proved in terms of Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act.”

The Court also observed that “mere registration of the will does not dispense with the mandatory requirement of proof by attesting witnesses.” Stating the nature of a testamentary document, it recorded that “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.”

On the scope of second appeal, the Court observed that “interference is permissible only when the appeal involves a substantial question of law.” It further recorded that “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 Court concluded that “the questions sought to be raised in the present second appeal essentially relate to re-appreciation of evidence and challenge to concurrent findings of fact.”

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The Court directed that “the present appeal is liable to be and is hereby dismissed.” It further recorded that “the appellants failed to raise any substantial question of law which is required under Section 100 of the Code of Civil Procedure. The judgments impugned passed by the learned trial court as well as by the learned first appellate court are just and proper and there is no illegality and infirmity at all.”

Advocates Representing the Parties

For the Appellants: Mr. Hemant Kumar Agrawal, Advocate
For the Respondents: Mr. Santosh Singh, Government Advocate

Case Title: Rampyare & Another v. Ramkishun & Another

Neutral Citation: 2026: CGHC:5238

Case Number: SA No. 183 of 2021

Bench: Justice Bibhu Datta Guru