Does the Section 90 presumption under the Indian Evidence Act, 1872 apply to a Will?

Feeling aggrieved by the Judgment and Decree dated November 30, 2004 passed in A.S. No.51 of 1997 by 'the Sub Court, Dharmapuri' ['First Appellate Court' for brevity], confirming the Judgment and Decree dated July 29, 1997 passed in O.S. No.612 of 1993 by 'the District Munsif Court, Harur' ['Trial Court' for brevity], the appellant / defendant therein has preferred this Second Appeal under Section 100 of 'the Code of Civil Procedure, 1908' ['C.P.C.' for short].

For the sake of convenience, hereinafter, the parties will be referred to as per their rank in the Original Suit before the Trial Court. PLAINTIFF'S CASE

The suit properties consist of two schedules - A & B. Case of the plaintiff is that they both belonged to Chinnappa Gounder, the maternal grandfather of the plaintiff and the defendant, as his self-acquired properties. Chinnappa Gounder during his lifetime executed a registered Will dated May 10, 1956 in respect of the suit properties, bequeathing the suit properties in favour of his daughter - Elachi @ Periakkal for life. As per the terms of the Will, the suit properties were to be enjoyed by her till her lifetime without any power of alienation and thereafter, the same were to be enjoyed by her son / plaintiff - P.Perumal and his brothers to be born. Elachi @ Periakkaal had another son by name P.Rengaswamy who is the defendant. At the time of execution of the Will, the defendant was 5 years old. The testator did not intend to give any property to the defendant; he intended to confer benefit only upon the plaintiff and such sons to be born through Elachi @ Periakkal in the future and he consciously excluded the defendant. After the Will, Elachi @ Periakkal gave birth to only female children and not to any male child. 3.1. The testator passed away on July 19, 1974. After his demise, the subject Will came into force, in accordance to which, Elachi @ Periakkal was enjoying the Suit 'A' and 'B' schedule properties as her life estate with the assistance of her two sons (plaintiff & defendant). As the defendant had no right over the suit properties, his mother - Elachi @ Periakkal permitted the defendant to enjoy some portion of the suit properties on humanitarian grounds. In the year 1983, Elachi @ Periakkal passed away. After her demise, as per the Will, the plaintiff took possession over the suit properties as their absolute owner. Thereafter, the plaintiff dug two Wells in the suit properties, and installed 2 oil engines and electrical motor pumps in the said Wells. That apart, the plaintiff constructed new buildings in the suit properties. Since the defendant was enjoying a certain portion of the suit properties, the plaintiff permitted the defendant to continue to enjoy the same on sympathetic grounds. 3.2. However, using the concessions given by the plaintiff, the defendant had fraudulently obtained Patta in respect of Suit 'B' schedule properties. In the month of September, 1992, based on the said Patta, the defendant trespassed into the Suit 'B' schedule properties and took possession of the same. 3.3. On April 16, 1993, the plaintiff issued a Pre-Suit Notice to the defendant, with incorrect particulars inadvertently omitting the existence of the Will. The defendant sent his Reply Notice dated April 22, 1993 to the plaintiff. Thereafter, on June 15, 1993, the plaintiff issued a second Pre-Suit Notice, this time with correct particulars, to the defendant. Upon receipt of the second Pre-Suit Notice, the defendant sent his Reply Notice dated June 30, 1993, denying the plaintiff's right over the Suit 'B' schedule properties. Hence, the plaintiff filed the Suit seeking the reliefs of declaration of title in respect of Suit 'B' schedule properties, delivery of vacant possession thereof and for mesne profits. DEFENDANT’S CASE

The defendant filed a written statement denying all the averments made by the plaintiff in the plaint. The defendant contended that the suit properties are ancestral properties and the Suit Will dated May 10, 1956 is invalid and not acted upon and further, contended that Elachi @ Periakkal and the plaintiff does not have any exclusive right over the suit properties and they were not in exclusive possession and enjoyment of the same. He further stated that during the year 1975, when Elachi @ Periakkal was alive, the family properties including the suit properties were partitioned into two equal shares by way of an oral partition, whereafter the plaintiff and the defendant were in possession and enjoyment of their respective share. In the year 1984, both the plaintiff and the defendant had obtained separate Patta for their respective share. In respect of the common pathway in the suit properties, a Joint Patta was issued in favour of the plaintiff and the defendant. During the year 1987, an UDR Patta was issued in favour of the defendant and the plaintiff did not raise any objection to the same. Later, on July 15, 1993, challenging the UDR Patta obtained by the defendant, plaintiff preferred an Appeal before the Revenue Divisional Officer, Dharmapuri. However, the said Appeal was dismissed on October 25, 1993. The defendant had spent more money in the share that was allotted to him in the oral partition to develop the same. The plaintiff was jealous about the development attained by the defendant and hence, has filed this frivolous Suit. Stating so, the defendant prayed to dismiss the Suit with costs.

Based on the above pleadings, the Trial Court framed necessary issues.

Before the Trial Court, during trial, the plaintiff in order to prove his case examined himself as P.W.1 and further, examined one Mr.Vasudevan as P.W.2 and marked Ex-A.1 to Ex-A.7; on the side of the defendant, defendant examined himself as D.W.1, one M.Rathinam as D.W.2 and marked Ex-B.1 to Ex-B.14.

On analyzing oral and documentary evidence, the Trial Court came to the conclusion that the plaintiff has exclusive title and right over the Suit 'B' schedule properties under the Suit Will and directed the defendant to deliver the possession of the same to the plaintiff within two months. Accordingly, the Trial Court decreed the Suit qua declaration and delivery of possession in respect of Suit 'B' schedule properties, as prayed for. As regards mesne profits, the Trial Court dismissed the Suit.

Challenging the Judgment and Decree passed by the Trial Court, the defendant preferred an Appeal before the First Appellate Court. He also filed an Application under Order XLI Rule 27 of C.P.C. in I.A. No.61 of 2000; and the same was allowed and Ex-B.15 to Ex- B.25 were marked. After analyzing the facts and evidence on record, the First Appellate Court, by relying upon the Judgment of Hon'ble High Court of Kerala in Kunhikannan -vs- Thayyullathi Kalyani, reported in AIR 1990 Kel 226, held that the defendant admitted the execution of Ex- A.1 - Will and hence, it need not be proved as per Section 68 of 'the Indian Evidence Act, 1872' ['the Evidence Act' for short]. Further held that, since Ex-A.1 - Will is more than 30 Years old, it attracts the presumption under the Section 90 of the Evidence Act [hereinafter, 'the Section 90' shall refer to 'Section 90 of the Evidence Act' unless otherwise specified]. Further held that, the defendant failed to prove the oral partition as alleged by him. Further held that the defendant cannot claim title and adverse possession at the same time. Accordingly, the First Appellate Court concurred with the conclusions of the Trial Court, dismissed the Appeal Suit and confirmed the Judgment and Decree passed by the Trial Court.

Aggrieved by the Judgment and Decree passed by the First Appellate Court, the defendant has preferred this Second Appeal. This Court vide Order dated August 25, 2005, admitted this Second Appeal on the following substantial questions of law: "1. Whether the lower appellate Court was right in upholding Ex.A.1 Will in the absence of compliance of the provisions of either Section 68 or Section 69 of the Indian Evidence Act, 1872? 2. Whether the Learned Subordinate Judge was right in holding that a person pleading title cannot plead adverse possession? 3. Whether the learned Subordinate Judge was right in not considering the additional documents that were produced before him in I.A.No.61 of 2000?"

Mr.M.Rajasekar, learned Counsel on record for the appellant / defendant would submit that the suit properties were ancestral properties in the hands of Chinnappa Gounder. Upon his demise, the suit properties and other properties fell into the hands of his daughter - Elachi @ Periakkal, the mother of plaintiff and defendant. During her lifetime, plaintiff and defendant orally partitioned the said properties and were in separate possession and enjoyment of their respective shares. Accordingly, the defendant was in possession and enjoyment of the Suit 'B' schedule properties. Ex-A.1 - registered Will dated May 10, 1956, having been executed in respect of ancestral properties, is invalid and moreover, it was not acted upon and therefore, the plaintiff does not have any exclusive title or right thereunder. 10.1. Further, the Trial Court as well as the First Appellate Court miserably failed to appreciate the law of proof of Will in the right perspective in tune with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act. They erred in holding that Ex- A.1 - Suit Will was proved, when none of the attesting witnesses was examined and no explanation was offered for their non-examination. Without prejudice to the above submissions, he would submit that the Courts failed to consider the fact that there is no explanation for exclusion of the defendant from the Suit Will, nor is there any reason therefor that could be gathered from the evidence or facts and circumstances of this case. 10.2. He further would submit that the Trial Court and the First Appellate Court also failed to consider Ex-B.1 to Ex-B.4, which are the Patta Pass Book & Patta issued under Updating Registry Scheme [UDR Patta] standing in the name of defendant, and Ex-B.5 to Ex-B.13, which are Electricity Bill Receipts & Tax Receipts issued in the name of defendant. He further contends that Ex-B.15 - Adangal Extract for the Fasli Year 1385, Ex-B.16 - Chitta for the Fasli Year 1386, Exs-B.22 to 25 - Kist Receipts prove the defendant's separate possession and enjoyment and probablizes his case of oral partition. The contention of the learned Counsel is that all the aforesaid documents together clearly establish that the plaintiff and the defendant were in exclusive possession and enjoyment of their respective portions of the suit properties allotted in the oral partition for a long time. Accordingly, the defendant has perfected title over the Suit ‘B’ schedule properties by way of adverse possession as well. Therefore, the learned Counsel would pray this Court to allow the Second Appeal and set aside the Judgment and Decree of the First Appellate Court and as well as that of the Trial Court.

Per contra, Ms.R.Poornima learned Counsel representing Mr.T.Panchatsaram, learned Counsel on record for the second respondent / legal representative of the sole respondent would submit that Ex-A.1 is a registered Will produced from proper custody and proved as per law. The attesting witnesses of Ex-A.1 are no more. The subject Will was executed in the year 1956 and produced before the Trial Court nearly after 40 years. Hence, Ex-A.1 - Will attracts the presumption under the Section 90. Further, she would submit that the defendant did not specifically deny Ex-A.1 - Will. On the other hand, his case is that the testator had no power to execute Ex-A.1 - Will in respect of the entire suit properties which are ancestral properties according to him, and his further case is that the Will was not acted upon. In these circumstances, there is no need to examine the attesting witnesses and the due execution of the Will can be presumed to be proved. 11.1. She further would submit that on the date of execution of Ex- A.1, the defendant was born and alive, but, the testator - Chinnappa Gounder (maternal grandfather of plaintiff & defendant) consciously did not bequeath any property in favour of the defendant, which is clearly indicated in the terms of Ex-A.1, for the reason best known to him. Further, she also would submit that the testator is an absolute owner of the suit properties and he is entitled to bequeath or convey the suit properties to anybody on his own volition. The defendant has no right to question the same i.e., Ex-A.1. The Trial Court as well as the First Appellate Court rightly held that Ex-A.1 - Will is proved and rightly decreed the Suit in favour of the plaintiff. There is no substantial question of law involved in this Second Appeal. Therefore, she would pray the Court to dismiss this Second Appeal and sustain the Judgment and Decree of the First Appellate Court as well as that of the Trial Court.

Heard the arguments advanced by the learned Counsel on either side and perused the materials available on record.

There is no dispute with regard to the relationship between the parties as stated in the plaint. Further, the suit properties originally belonged to the maternal grandfather of the plaintiff and the defendant, namely Chinnappa Gounder. Chinnappa Gounder passed away on July 19, 1974. Elachi @ Periakkal passed away in or around the year 1983. There is no serious dispute with regard to the above facts.

The plaintiff's case is that the suit properties are self-acquired properties of his maternal grandfather - Chinnappa Gounder and the plaintiff is entitled to the suit properties in their entirety on the basis of Ex-A.1 - registered Will dated May 10, 1956. His further case is that the defendant is in permissive possession of a portion of the suit properties viz., Suit 'B' schedule properties, on humanitarian grounds, but the defendant took advantage of the same and fraudulently obtained UDR Patta in respect of the Suit 'B' schedule properties. Hence, the Suit for declaration of title in respect of Suit 'B' schedule properties, delivery of vacant possession thereof and for mesne profits.

On the other hand, the defendant does not dispute the execution of Ex-A.1 - Suit Will. His case is that the Suit Will is invalid as executed in respect of the suit properties which according to him are ancestral properties. He further contends that the Suit Will was never acted upon. He sets up a plea of oral partition between him and his brother / plaintiff during the lifetime of their mother - Elachi @ Periakkal, whereby the Suit 'B' schedule properties was allotted to him. Revenue records were mutated in his name pursuant thereto. Accordingly, the Suit 'B' schedule properties belongs to him and the plaintiff is not entitled to the same.

Admittedly, the parties are Hindus and the applicable law of succession is the Hindu Succession Act, 1956. As it could be seen from the plaint and the written statement, there exist a dispute between the parties qua character of suit properties. From the evidence of the plaintiff / P.W.1 and the defendant / D.W.1, it could be seen that Chinnappa Gounder had only three children who were all daughters and hence, he was the sole surviving co-parcener as per the Hindu Succession Act, 1956 as it stood then. Under the circumstance, this Court is of the view that the question of whether the suit properties are separate or ancestral properties does not arise at all, for the reason that the suit properties are from the maternal side of the parties, and even if the suit properties are considered to be ancestral properties, Chinnappa Gounder, being the sole surviving coparcener, can dispose them of as he desires in the same manner he can dispose of his separate properties. Moreover, the defendant / D.W.1 has admitted in his evidence that the suit properties are separate properties of Chinnappa Gounder. Therefore, this Court need not delve into the aspect of character of suit properties.

Coming to the main contention on the side of plaintiff, which is that Ex-A.1 - registered Will dated May 10, 1956 being about 40 years, and being from the proper custody of its propounder, attracts the presumption contemplated under the Section 90 and hence, no separate proof for its execution is required. The defendant rebuts by contending that Ex-A.1 - Suit Will is not acted upon and in the first place, the plaintiff ought to prove its execution as per law which he failed to do.

This Court would prefer to set out the legal position qua proof of Will relevant for the case on hand. Firstly, it is apposite to refer to the Judgment of Hon'ble Supreme Court in H.Venkatachala Iyengar -vs- B.N.Thimmajamma, reported in AIR 1959 SC 443 which is regarded as the locus classicus when it comes to proof of Will. Relevant extract is hereunder: "18.What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. "

As laid down in H.Venkatachala Iyengar's Case, the initial burden is upon propounder of the Will to prove its execution by the testator in a free, voluntary, sound and disposing state of mind. The propounder must prove the Will in accordance with Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act. If compliance with Section 68 is not possible, resort shall be made to Sections 69 to Section 71. Further, if there exist any suspicious circumstance surrounding the Will, it is incumbent upon the propounder to remove the same and prove the Will in order to enjoy the benefits thereunder. The onus upon the propounder is high, when the Will is surrounded by suspicious circumstances or when the propounder has played substantial role in execution of the Will. These aspects are clear from H.Venkatachala Iyengar's Case.

As regards the Kerala High Court's Division Bench decision in Kunhikannan's Case [cited supra] relied on by the First Appellate Court for dispensing with the plaintiff's burden to prove the Suit Will as per law on the ground that the Suit Will has been admitted by the defendant, besides being in conflict with the Hon'ble Supreme Court's Judgment in H.Venkatachala Iyengar's Case, it has subsequently been held as one not laying down a good law by a Co-ordinate Bench of the same High Court in Vadakkayil Gopalan -vs- Vadakkayil Paru, reported in MANU/KE/0636/2013. Relevant extract therefrom is as follows: "28. In Gopal Swaroop v. Krishna Murari Mangal and others MANU/SC/0988/2010 : [(2010) 14 SCC 266] : 2010 ICO 1578 it was held in paragraph 15 that, "Section 68 of the Evidence Act is against the use of a will in evidence unless one attesting witness has been examined to prove the execution" . In view of the decisions in H. Venkatachala Iyengar's case (MANU/SC/0115/1958 : AIR 1959 S.C. 443), Rani Purnima Debi's case (MANU/SC/0020/1961 : AIR 1962 S.C. 567), Srinivasa's case [MANU/SC/0285/2010 : (2010) 5 SCC 274], Rosammal's case (MANU/SC/0510/2000 : AIR 2000 S.C. 2857) and Gopal Swaroop' case [MANU/SC/0988/2010 : (2010) 14 SCC 266], the decision of this Court in Thayyullathil Kunhikannan's case [MANU/KE/0050/1990 : 1990 (1) KLJ 114] regarding the proof of Will in the absence of specific denial in the written statement, does not lay down good law. Even the absence of any specific denial of execution of a Will or even an admission of its existence will not absolve the duty of the propounder of a Will to prove its genuineness and the further duty to dispel all the suspicious circumstances, if any, surrounding its execution. The doctrine of dependent relative revocation also does not absolve the burden of the propounder of the earlier Will from proving its genuineness or its due execution, and the further burden to dispel all the suspicious circumstances, surrounding its execution." 20.1. Further, another Division Bench of the Hon'ble Kerala High Court in Saradha -vs- Radhamani, reported in MANU/KE/0572/2017 was of the same view and concluded that: "15. There is a world of difference between the factum of a document akin to the Will being admitted under Section 58 of the Act and proof of due execution of the Will under Section 68 of the Act. The due execution of the Will cannot be proved otherwise than by recourse to Section 68 of the Act and Section 63 of the Indian Succession Act, 1925 as has been held time and again. The general provisions of Section 58 of the Act has obviously to give way to the special provisions of Section 68 of the Act which govern documents required by law to be attested. That some documents are required by law to be attested imply that law gives additional solemnity empowering the executants with rights and obligations thereunder. Section 68 of the Act operates as an exception in relation to documents required by law to be attested and cannot be said to be subject to Section 58 of the Act by any stretch of imagination. No distinction has been drawn by the statutory provision between an 'admitted Will' and a 'disputed Will' as has been rightly observed by Mr. Justice P. Bhavadasan in Poulose. A.V.'s case (supra). One of the attesting witnesses if he be alive should be called for the purpose of proving its execution whenever a Will is used as evidence and for whatever purpose. 16. We follow Ramesh Verma's case and approve the dictum in Poulose A.V.'s case as well as Vadakkayil Gopalan's case (supra) as regards the necessity to examine one attesting witness at least in evidence. The decisions in Thayullathil Kunhikannan's case, Princelal G's case and Maya Siva Sankar's case (supra) to the extent it obviates such necessity are declared per incuriam." 20.2. Furthermore, a learned Single Judge of this Court in Malliga -vs- P. Kumaran, reported in MANU/TN/2920/2022, referring to Judgments of Hon'ble Supreme Court in Ramesh Verma -vs- Lajesh Saxena, reported in (2017) 1 SCC 257 and in Jagadish Chand Sharma -vs- Narain Singh Saini, reported in (2015) 8 SCC 615, held that Section 68 of the Evidence Act is a mandatory provision for proof of Will which must be complied with even when the Will is admitted. Relevant extract is hereunder: "20. The law was once and for all settled by the Hon'ble Supreme Court in [Ramesh Verma (Dead) Through Legal representatives Vs. Lajesh Saxena (dead) by legal representatives and another] reported in MANU/SC/1549/2016 : 2017 1 SCC 257. The relevant portion in the judgment is extracted hereunder:- "13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement." 21. The above judgment in no uncertain terms laid down the law to the effect that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act and this position cannot be diluted even if the opposite party has not specifically denied the execution of the Will. 22. It is also relevant to take note of the judgment of the Hon'ble Supreme Court in [Jagadish Chand Sharma Vs. Narain Singh Saini (Dead) through Legal representatives and others] in MANU/SC/0522/2015 : 2015 8 SCC 615. The relevant portions in the judgment is extracted hereunder:- "21. As would be evident from the contents of Section 63 of the Act that to execute the Will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as Will. The Section further mandates that the Will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgement of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the Will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary. 22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a Will under the Act are mandatory in nature, so much so, that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property. 22.1. In the evidentiary context Section 68 of the Act 1872 enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of Court and capable of giving evidence proves its execution. The proviso attached to this Section relaxes this requirement in case of a document, not being a Will, but has been registered in accordance with the provisions of the Indian Registration Act 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied." 23. Even in the above judgment, the Hon'ble Supreme Court has reiterated the mandatory nature of Section 68 of the Evidence Act and has categorically held that the proviso to the said section provides for a relaxation of the requirement only for a document other than a Will." 20.3. Hence, this Court is of the view that Kunhikannan's Case, relied on by the First Appellate Court for holding that the plaintiff is not required to prove the Suit Will as per law on the ground that the Suit Will has been admitted by the defendant, is not a good precedent. The said finding of the First Appellate Court is an erroneous one which is in complete disregard of the settled legal position that de hors the admission of a Will, or the absence of any plea or specific denial of the same, a Will is to be proved as per law. Therefore, the plaintiff being the propounder of Ex-A.1 - Suit Will in order to lay a successful claim thereunder, is bound to prove it as per law.

At this point, this Court deems fit to extract hereunder the statutory provision of the Section 90: "90. Presumption as to documents thirty years old. – Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.– Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81. Illustrations (a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper. (b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper. (c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper."

The Section 90 provides that 'any document' purporting to be thirty years old or more, which in the opinion of the Court is from a proper custody, the Court, in appropriate cases, 'may presume' certain things; the Court may at its discretion draw presumption as to the genuineness of signature(s) and handwriting(s) in the document as well as the document's due execution and attestation. The explanation and illustrations to the Section 90 throws light on what can be considered a proper custody.

The learned Counsel appearing for the respondent / plaintiff would contend that the Suit Will is entitled to the presumption under the Section 90. An interesting question arises at this point - Whether the discretionary presumption under the Section 90 can be applied in case of a Will. Choice of words in the Section 90 viz., 'any document', shows that the Section 90 does not explicitly exclude Wills from its ambit, nor does the relevant definition of 'document' contained under Section 3 of the Evidence Act exclude Wills.

Further, presumption as to proof of Will, could be seen to have been drawn even before the advent of the Evidence Act. In Rajendro Nath Holdar -vs- Jogendro Nath Banrree, reported in 1871 SCC OnLine PC 11 : (1871-72) 14 Moo IA 67, the Privy Council was dealing with a 27 Years old Dan Unnoomottee puttro, which is a document in the nature of testament. The Privy Council preferred to refer to it as 'the Will' owing to its testamentary nature. It was a case wherein one of the testator's heir sued the appellant / defendant challenging the latter's adoption under the alleged authority of 'the Will'; genuineness of 'the Will' was incidentally under challenge. The Privy Council held as hereunder: "We, therefore, find that for a period of twenty-seven years this Will was, with the exceptions I have mentioned, acted upon and recognized by the whole of the family of Kalli Frosad Holdar, and that the legal status of the Appellant was acquired under it with the knowledge of all the members of the family. If the document had been a fabrication, and if there were persons who might have intervened and have contested the Will, the presumptive heir, who was in existence before his title was defeated by the birth of the present contesting Respondent, might have come forward in one way or another and contested the Will. Therefore, there arises from all these circumstances a very strong presumption, which their Lordships do not feel themselves at liberty to disregard, in favour of the Will. No doubt these circumstances, as the law stands, are not conclusive against the first Respondent. He has the right to call upon the Appellant, the Defendant in the suit, to prove his title but their Lordships cannot but feel that while he has that extreme right, every allowance that can be fairly made for the loss of evidence during this long period, by death or otherwise— every allowance which can account for any imperfection in the evidence—ought to be made; and, on the other hand, that in testing the credibility of the evidence which is actually given, great weight should be given to all those inferences and presumptions-which arise from the conduct of the family with respect to the Will and to the acts done by them under the Will. The case seems to their Lordships to be analogous to one in which the legitimacy of a person in possession is questioned, a very considerable time after his possession has been acquired, by a party who has a strict legal right to question his legitimacy. In such a case the Defendant, in order to defend his status, should be allowed to invoke against the Claimant every presumption which reasonably arises from the long recognition of his legitimacy by members of the family or other persons. The case of a Hindoo claiming by adoption is perhaps as strong as any case of the kind that can be put; because when, under a document which is Supposed and admitted by the whole family to be genuine, he is adopted, he loses the rights—he may lose them altogether— which he would have in his own family; and it would be most unjust after long lapse of time to deprive him of the status which he has acquired in the family into which he has been introduced, except upon the strongest proof of the alleged defect in his title." [Emphasis supplied by this Court] 24.1. In the above case, taking note of the imperfections and loss that could potentially arise in the evidence qua genuineness of 'the Will' over the years owing to its age, the Privy Council held that allowances ought to be made therefor in favour of the appellant / defendant therein, who was the person relying on 'the Will'. The Privy Council went on to hold the adoption under the authority of 'the Will' valid. For that, a strong presumption was drawn in favour of 'the Will' by giving great weightage to the conduct of the testator's family towards 'the Will' and their acts based upon it. In other words, acknowledging the difficulty in proving such an old transaction and considering the conduct of the testator's family qua 'the Will' over the 27 years of its existence, the Privy Council went ahead to draw a presumption in favour of its genuineness. The verdict carries one of the foundational principle which later came to be embedded in the Section 90, which is that, the same vigor of proof expected in case of a recent document cannot be expected in an old or antique document.

Following Rajendro Nath Holdar's Case, the Privy Council in Basant Singh -vs- Brij Raj Saran Singh, reported in 1935 SCC OnLine PC 21 : ILR (1935) 57 All 494, while dealing with a similar case of challenge to adoption based on the alleged authority of a Will, held that the Section 90 applies only to an original document, and in case of a secondary evidence / copy, presumption may be drawn as to the signatures found therein alone and not to the genuineness of the original, provided that the other ingredients of the Section 90 are satisfied. However, upon holding so, the Privy Council held that the principles laid down in Rajendro Nath Holdar's Case are applicable, and that a presumption is to be drawn in favour of the authority (Will) based upon which the long standing adoption was made. So, in Basant Singh's Case, the Privy Council laid down the law that presumption under the Section 90 is not applicable to secondary evidence in a full-fledged manner, it is rather limited to authenticity of the signatures found therein. Yet it went on to rely on the conduct of the parties with regard to the Will to draw a presumption in favour of its genuineness, in line with the principles stated in Rajendro Nath Holdar's Case.

Munnalal's Case [Munnalal -vs- Kashibai, reported in (1947) 60 LW 5 (Coram Strength = 3)] paints a clear picture. In this case, the primary question before the Privy Council was whether the discretionary presumption under the Section 90 is applicable to the sound disposing state of mind of the testator. The Trial Court therein had held that while the Section 90 presumption is applicable to execution and attestation of Will, it cannot be extended to the testamentary capacity of the testator. In appeal, the High Court disagreed with the Trial Court therein and held that it extends to testamentary capacity of the testator as well. The Privy Council observed that both the Trial Court therein as well as the High Court were right in holding that the Section 90 is applicable to an original Will, which is the key point to be noted. It then went on to concur with the view of the High Court and held that, in the absence of any evidence on record as to the testator's state of mind, it may be presumed that Will is executed duly in a sound and disposing state of mind by the testator if the essential ingredients of the Section 90 are satisfied. Relevant extract from Munnalal's Case is hereunder: "The will of Bahadur was more than thirty years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the will could be presumed under S. 90; they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a will is required to prove that the testator was of sound disposing mind when he made his will but, in the absence of any evidence as to the state of the testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of S. 90, since a will cannot be said to be “duly” executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S. 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right, and that the will must be presumed to have been duly executed. The view taken by the learned Subordinate Judge would render it impossible, in most cases, to prove ancient wills. This disposes of the first appeal."

Further, Munnalal's Case has been followed by a Coram consisting of three Hon'ble Judges of the Hon'ble Supreme Court, in a matter relating to proof of Will in Kalidindi Venkata Subbaraju -vs- Chintalapati Subbaraju reported in AIR 1968 SC 947, for the proposition that the Section 90 applies only to original document and not a copy. Relevant extract reads thus: "5. … The High Court appears to have relied upon Section 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Krishibai). Where a certified copy of a document is produced the correct position is as stated in Bassant Singh v. Brij Rai where the Privy Council laid down that if the document produced is a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. …"

The judicial trend remained that the Section 90 is applicable to Wills until 2009 when the Hon'ble Supreme Court in Bharpur Singh -vs- Shamsher Singh, reported in (2009) 3 SCC 687 [Coram Strength = 2] observed that in view of the standard of proof laid down under Section 63 of the Indian Succession Act, 1925 read with Sections 68 to 70 of the Evidence Act, Wills do not fall within the scope of the Section 90 [See Subhash Nayyar -vs- Registrar, University of Delhi, reported in 2013 SCC OnLine Del 250, wherein it was held by a Division Bench of the Hon'ble Delhi High Court in Paragraph No.25 thereat that the decision in Bharpur Singh's Case is misconstrued]. This was later relied upon and followed by the Hon'ble Supreme Court in M.B. Ramesh -vs- K.M. Veeraje Urs, reported in (2013) 7 SCC 490 and Ashutosh Samanta -vs- Ranjan Bala Dasi, reported in (2023) 19 SCC 448. The Coram Strength in both these cases are also two.

As per the Privy Council's Judgment in Munnalal's Case [cited supra], the Section 90 applies to a Will. The same view has been affirmed by Hon'ble Supreme Court in Kalidindi Venkata Subbaraju's Case [cited supra] where the Coram strength was three. Subsequently, without any reference to the larger bench Judgment in Kalidindi Venkata Subbaraju's Case or any of the Privy Council Judgments, it was held by Hon'ble Supreme Court in the three Judgments named in the previous paragraph, that Section 90 does not apply in case of a Will; the Coram strength in all the three cases is two. Judicial conscience and discipline mandates this Court to follow the larger bench Judgment of the Hon'ble Supreme Court in Kalidindi Venkata Subbaraju's Case.

At this point, this Court deems fit to cite here the Judgment of a learned Single Judge of this Court, in Marathal -vs- Kanniammal, reported in 2024 SCC OnLine Mad 5153, wherein after an extensive discussion, inter-alia, by relying on a line of Judgments of the Privy Council and our Hon'ble Supreme Court some of which have been referred to by this Court supra and also by relying on the principles that the law laid down by the Privy Council holds good so long as the Hon'ble Supreme Court does not differ with it and that the law laid down by a larger bench prevails over a smaller bench, the learned Single Judge was of the considered opinion that the presumption under the Section 90 is applicable to Wills, provided they are more than 30 years old and their original is produced from a proper custody. Further another learned Single Judge of this Court, in their Judgment in K.Rajeswari -vs- Kungumayee, reported in 2024 (3) LW 171, has also held that the Section 90 is applicable to Wills on the strength of Kalidindi Venkata Subbaraju's Case.

Hence, this Court is inclined to follow the larger bench Judgment in Kalidindi Venkata Subbaraju's Case and hold that the discretionary presumption under Section 90 is available to a Will, provided the same is an original 30 years old or more and from a proper custody.

This Court shall now examine whether this is a fit case for exercising its discretion to raise the presumption contemplated under the Section 90 in respect of the Suit Will. Admittedly, the Suit Will viz., Ex- A.1 - registered original Will dated May 10, 1956, was executed nearly 40 years prior to the Suit. It was presented before the Court from the proper custody of the propounder. So, in the present case the essential ingredients under the Section 90 are satisfied. However, it is to be noted that the plaintiff and the defendant are brothers, born to Elachi @ Periakkal, who is none other than a daughter of the testator - Chinnappa Gounder. In other words, the testator is the maternal grandfather of the plaintiff and the defendant. The testator is not a literate person. On the date of execution of Ex-A.1, the defendant was very much alive; he was five years old. The reason as to why the testator did not bequeath any property to the defendant has not been explained in Ex-A.1, nor does the record or the facts and circumstances of the case disclose any reason for such exclusion. Further, in the subject Will, an interlineation had been made, to include the male heirs to be born as brothers of the plaintiff, as beneficiaries thereunder in addition to the plaintiff. 32.1. Further, in the first Pre-Suit Notice in Ex-A.2 issued by the plaintiff against his brother / and his sisters, there is no mention of any Will. It has only been averred that the suit properties and one another property were being enjoyed by plaintiff and defendant without any actual division. Stating so, he sought for partition and allotment of 11/25 shares each in favour of the plaintiff and the defendant, and 1/25 share each in favour of their three sisters. The defendant replies to Ex-A.2 vide Ex-A.3 - Reply Notice, stating that an oral partition took place during the lifetime of Elachi @ Periakkal itself and that their sisters did not lay any claim over the properties as they were married off. After the defendant's reply notice in Ex-A.3, the plaintiff issued another Pre-Suit Notice marked in Ex-A.4 dated June 15, 1993, bringing upon the Suit Will into picture. The suppression of the Suit Will in the earlier Pre-Suit Notice also raises suspicion around the Suit Will. 32.2. The interlineated statement, suppression of the Suit Will in the earlier Pre-Suit Notice, coupled with the non-explanation of the defendant's exclusion and the fact that the testator is not literate, would create a suspicion as to whether the testator really intended to bequeath the suit properties to the plaintiff alone, excluding the defendant. For ease of reference, recitals contained in Ex-A.1 - Suit Will is extracted hereunder: "1956ம் வருஷம் மே மாதம் 10ம் தேதியில் சேலம் ஜில்லா அரூர் தாலூக்கா பொய்யப்பட்டடி தரப், கட்டவடிச்சாம்பட்டி கிராமம் வேளாள பயிர் பேராச்சிக் கவுண்டன் மனைவியும் என் மகளுமான எலிச்சி என்கிற பெரியாக்காள் 1 ஷை பெரியாக்காளின் மகனும் எனக்கு பௌத்திரனுமான பெருமாள் கவுண்டன் 2 ஆகிய உங்களுக்கு ஷை தாலூக்கா கிராமம் வேளாள பயிர் சின்னப்பக்கவுண்டன் மகன் சின்னப்ப கவுண்டன் எழுதி வைத்த உயில் ஸாஸனம்- எனக்கு வயதாகிவிட்டபடியாலும் என் மனைவி இறந்து போனபடியாலும் எனக்கு ஆண் சந்ததி இல்லாததாலும் உங்கள் பேரில் எனக்கு பூரண நம்பிக்கை இருப்பதாலும் யாதொரு வில்லங்கமும் இல்லாத அடியில் கண்ட சொத்துக்கள் எனக்கு சுயார்ஜிதமாய் பாத்தியப்பட்ட 1000 ஆயிரம் ரூபாய் மதிப்புள்ள ஸ்தாவர ஜங்கம சொத்துகளை என்னிட ஜீவ திசைக்குபின் மேலே கண்ட 1 லக்க்மிட்ட எலிச்சி என்கிற பெரியாக்கள் அவளுடைய ஆயுள்வரை பராதீனம் செய்யாமல் அனுபவித்து அவளிட ஜீவதிசைக்குபின் 2 லக்கமிட்ட பெருமாள் கவுண்டனும் *இனி பிறக்கும் 2 லக்கமிட்டவனிட சகோதிரர்களும் சேர்ந்து* சர்வ சுதந்திரத்துடன் ஆண்டு அனுபவித்து கொள்ள வேண்டியது. நான் இறந்தபின் எனக்கு செய்யவேண்டிய உத்திரகிரியைகளை நீங்களே செய்ய வேண்டியது என் ஜீவதிசைக்குள் இந்த உயிலை மாற்றவும் ரத்து செய்யவும் எனக்கு அதிகாரமுண்டு. என் ஜீவதிசைக்குப் பின் இந்த உயில் அமுலுக்கு வர வேண்டியது. இந்தப்படி என் சம்மதியில் நல்ல எண்ணத்துடனும் புத்தி சுவாதீனத்துடனும் எழுதிவைத்த உயில் ஸாஸனம். சொத்து விபரம் சேலம் டி. அரூர் சப்ரிடி அரூர் தாலுகா, பொய்யப்பட்டு தரப், தீர்த்தமலை பஞ்சாயத்துக்கு சேர்ந்த கட்டவடிச்சாம்பட்டி கிராமத்தில் நான் சுயார்ஜிதமாய் சம்பாதித்து என்பேரில் பட்டவாய் என் சுயார்ஜித அனுபவத்தில் வரும் க.ரீ.சர்வே 16.2 புஞ்சை ஏக்கர் 0.65க்கு தீர்வை 0.70 ச.நெ 26 புஞ் ஏ.8.54க்கு தீர்வை 4.4.0. இதில் உள்ள துரஸ்து கிணர்கள் 2 கூரை கொட்டாய்கள் 2 புளியமரங்கள் 2 மற்ற மாவிடை மரவிடை சகிதம் ச.நெ. 43.2 புஞ்.ஏ.0.17க்கு தீர்வை 0.3.0. ச.நெ. 43.9 புஞ் ஏக்கர் 0.88க்கு தீர்வை 0.14.0 ச.நெ 46.3 பு ஏக்கர் 4.00 தீர் 2.8.0 இதுகள் பூராவும். கட்டவடிச்சாம்பட்டி கிராமம் நத்தத்தில் ராஜவீதிக்கு கிழக்கும் தெர்க்கும் கொ.கானக் கவுண்டன் வீட்டுக்கு நடக்கும் வாசல்களுக்கு மேர்க்கும் வடக்கும் இதன் மத்தியில் 5 அங்கண கூரைவீடுகள் 2.-ம் இதற்கு சேர்ந்த பூக்கடை பழக்கடை சகதிமும் என் ஆயுளுக்குப்பின் நான் லேவாதேவி செய்துவரும் பாண்டு பத்திரங்கள் உள்படவும் கால்நடைகள் சகிதமும் சோந்ததுதான் இந்த உயிலுக்கு பாத்தியப்பட்டது. கீரல் சின்னப்பகவுண்டன் சாஷிகள் 1. . . . . . . . . . . . . 2. . . . . . . . . . . . . 3. . . . . . . . . . . . . *Interlineated Portion* [Emphasis supplied by this Court] 32.3. From a bare reading of Ex-A.1, it is evident that why the testator disinherited the defendant has not been spelled out. Under the given circumstances, this Court is of the view that, examination of the attesting witnesses or the scribe gains significance, as they would be in an appropriate and competent position to explain the story behind the interlineation and the exclusion of defendant, and thereby offer explanation to remove the suspicion and aid the plaintiff in proving the Will. In view of the suspicion surrounding the Will, though Ex-A.1 is a registered Will executed way back in 1956, this Court is of the view that this is not a fit case to exercise its discretion to invoke the presumption under the Section 90.

Now that presumption under the Section 90 is out of the picture, this Court shall see whether the plaintiff being the propounder of the Suit Will has proved it in the manner known to law. As stated supra, even in the absence of denial made by the defendant in their written statement, the propounder of the Will has to prove it either by examining at least one of the attesting witnesses as contemplated under Section 68 of the Evidence Act or by any other mode contemplated under Sections 69 to 71 of the Evidence Act. And in view of the aforesaid suspicion surrounding the Will, the burden rests heavily upon the plaintiff to remove the same and prove the Will as per law. While so, the plaintiff did not examine any of the attesting witnesses. The plaintiff would assert that the attesting witnesses and the scribe are no more. If that be the case, then the plaintiff ought to have followed the course stipulated under Section 69 of the Evidence Act and taken steps to prove the Suit Will by examining any person acquainted with the handwriting of the attestors, but he failed to do so; no person acquainted with the testator's signature or attestor's signature were examined during the trial. The plaintiff could have at least examined any other competent witness to throw some light on the family dynamics as it was at the time of execution of the Will and on the exclusion of the defendant, but he again failed to do so. No steps were taken on the side of the plaintiff to prove the Suit Will under any of the modes contemplated under Sections 68 to 71 of the Evidence Act. In these circumstances, this Court is of the view that the plaintiff as the propounder of the Suit Will miserably failed to establish the same. The Trial Court as well as the First Appellate Court failed to appreciate the law regarding proof of the Suit Will in the right perspective and erred in holding that the Suit Will has been proved even in the absence of compliance of Sections 68 and 69 of the Evidence Act. The first substantial question of law is answered accordingly against the defendant.

Even if this Court is to assume that the Suit Will has been proved by the plaintiff, originally the Will named only the plaintiff as the beneficiary; by way of an interlineation, the words "and brothers to be born" [இனி பிறக்கும் 2 லக்கமிட்டவனிட சகோதிரர்களும் சேர்ந்து ] were inserted. This interlineation, however, in the facts and circumstances of the case, does not seem to be a fraudulent addition. To be noted, the Suit Will is presented from the custody of the plaintiff and he would have no reason to make such an addition which, if at all anything, operates only weaken his case. It appears to be an original interlineation made by the scribe himself in the course of preparing the Will; it appears natural in all aspects and there is nothing to the contrary. Further, it is not in dispute that, on the date of execution of the Will, the plaintiff already had a brother - the defendant, who was very much alive. It is also relevant to note that the testator was an illiterate person. In those days, due to lack of awareness of legal implications and consequences, legal matters were generally not regarded with the same degree of precision as they are done today. In the considered opinion of this Court, in the given facts and circumstances, the omission to mention the defendant's name appears to have been a mere inadvertent one and the interlineation appears to have been made with the intention of extending the benefit under the Will to the defendant consequent to the inadvertent omission of defendant's name. To put it differently, the use of the interlineated expression "brothers to be born" appears to be an imperfect expression of the testator's intention to add the defendant who was already alive on the date of execution of the Will as a beneficiary to the Suit Will, rather than a deliberate exclusion of the defendant from the Suit Will. Neither the recitals in the Will nor the surrounding circumstances indicate that the testator intended to disinherit the defendant, nor is there any conceivable reason therefor. If the expression is to be construed literally, in the considered opinion of this Court, it would produce an unnatural and unintended result by excluding the existing brother / defendant without any conceivable reason. Therefore, the interlineation must be understood as reflecting the testator's intention to include all the plaintiff's brothers, including the brother who was already alive on the date of execution of the Will. In that case, the plaintiff and the defendant would equally be entitled to the suit properties. This Court reiterates that this scenario is only under the aforesaid assumption; the finding of this Court remains that the plaintiff failed to prove the Suit Will as stated above.

The claim of the plaintiff that he is entitled to the entire suit properties, is completely based on Ex-A.1 - Suit Will. As the Suit Will has not been proved by removing the suspicious circumstances surrounding it, the plaintiff has miserably failed to establish his case. On the other hand, the documentary evidence adduced by the defendant would go on to probablize his case of oral partition. Before discussing the same, this Court would like to list the suit properties. Suit 'A' schedule properties consist of the following properties: Suit 'A' schedule properties S.No. Survey Extent Number 1. 16/2A 23 Cents 2. 16/2B 9 Cents 3. 16/2C 22 Cents 4. 26/1 1 Acre 5. 26/3 26 Cents 6. 26/4 2 Acres 64 Cents 7. 26/5 2 Cents 8. 26/6 26 Cents 9. 43/2 17 Cents 10. 43/9A 40 Cents 11. 46/3A 1 Acre 44 Cents 12. 46/3C 9 Cents 13. 46/3D 11 Cents Total 6 Acres 93 Cents 35.1. And Suit 'B' schedule properties consist of the following properties: Suit 'B' schedule properties S.No. Survey Extent Number 1. 16/2D 13 Cents 2. 26/2 1 Acre 17 Cents 3. 26/7 3 Acres 19 Cents 4. 43/9B 48 Cents 5. 46/3B 2 Acres 36 Cents Total 7 Acres 33 Cents

Coming to the defendant's plea of oral partition, the defendant has marked Ex-B.1 to Ex-B.25. Ex-B.15 is the adangal extract for the Fasli Year 1385 (1975). As per Ex-B.15, Patta No.128 in respect of 59 Cents in Survey No.15/4B stands in the name of Perasi Gounder, who is none other than the father of plaintiff and defendant, and Patta No.12 stands jointly in the name of 'plaintiff and others' in respect of certain properties. The particulars shown in Ex-B.15 - Adangal Extract are as hereunder: S.No. Patta Survey Extent Name Number Number 1 128 15/4B 59 Cents Perasi Gounder 2 12 16/2 65 Cents Perumal 3 26 8 Acres 54 Gounder Cents (plaintiff) and 4 43/2 17 Cents vagaiyara 5 43/9 88 Cents (others) 6 46/3 4 Acres Total Extent 14 Acres 83 Cents

Ex-B.16 is the Village Settlement Chitta [10(1) Chitta], relating to Fasli Year 1386 (1976). It talks about three pattas. Firstly, it talks about Patta No.12, which has been separately marked as Ex-B.1. Ex-B.1 was issued before UDR on December 5, 1984. It can be seen that Patta No.12 stands jointly in the name of 'plaintiff and defendant' in respect of the following properties: S. No. Survey Extent No. 1 16/2B 7 Cents 2 26/3 26 Cents 3 26/5 2 Cents 4 46/3D 11 Cents 5 15/4B1 37 Cents Total 83 Cents Ex-B.4 - UDR Patta No.241 dated March 13, 1986 stands jointly in the name of the defendant and the plaintiff in respect of the same set of properties mentioned in Patta No.12 and thereby corroborates it. From Ex-B.16, it could also be seen that 'plaintiff and others' mentioned in Ex- B.1 - Patta No.12 shown in Ex-B.15, refers to 'plaintiff and defendant'. 37.1. Secondly, it shows that Patta No.254 stands separately in the name of defendant in respect of the Suit 'B' schedule properties tabulated above. Patta No.254 has been marked separately as Ex-B.3. Ex-B.2 - UDR Patta No.233 stands in the name of defendant in respect of Suit 'B' schedule properties and it corroborates Ex-B.3 - Patta No.254. 37.2. Thirdly, it talks about Patta No.255 which stands in the name of the plaintiff in respect of most of the Suit 'A' schedule properties and in addition thereto, in respect of the 22 Cents in Survey Nos.15/4B2. Its property particulars are as tabulated hereunder: S.No. Survey Extent No. 1 15/4B2 22 Cents 2 16/2A 23 Cents 3 16/2C 22 Cents 4 26/1 1 Acre 5 26/4 2 Acres 64 Cents 6 26/6 26 Cents 7 43/2 17 Cents 8 43/9A 40 Cents 9 46/3A 1 Acre 44 Cents 10 46/3C 9 Cents Total 6 Acres 67 Cents Ex-A.6 - UDR Patta No.142 marked on the side of the plaintiff, precisely matches with the Patta No.255 shown in Ex-B.16, except for the fact that the property extents are mentioned in Hectares in Ex-A.6.

From the documentary evidence in Ex-B.15 - Adangal Extract, it can be seen that the suit properties were jointly enjoyed by the family of plaintiff and defendant. Ex-B.16 - Village Settlement Chitta [10(1) Chitta] shows that subsequently i.e., around 1976, the suit properties were divided between the plaintiff and the defendant with some portions of the suit properties reserved for common enjoyment. It shows that the Suit 'B' schedule properties were enjoyed by the defendant, that the properties mentioned in Patta No.255 were enjoyed by the plaintiff and that those mentioned in Patta No.12, which is a Joint Patta, were enjoyed by the plaintiff and the defendant jointly. Thereafter, with the advent of the UDR Scheme, Ex-B.2 - UDR Patta No.233 was issued in the name of defendant in respect of Suit 'B' schedule properties; Ex-A.6 - UDR Patta No.142 was issued in favour of the plaintiff in respect of more or less the same properties that were previously enjoyed by him vide Patta No.255; and Ex-B.4 - UDR Patta No.241 was issued jointly in the name of the defendant and the plaintiff in respect of the same set of properties mentioned in Patta No.12. Thus, Ex-B.2, Ex-B.4 and Ex-A.6 would go on to show that pursuant to the division of suit properties in 1976, the parties have been in exclusive possession of their respective portions while enjoying some portions in common.

Further, Ex-A.7 is the plaintiff's separate kist receipt for 1989 to 1992, in respect of properties mentioned in Patta No.142 (plaintiff's separate patta) and Patta No.241 (joint patta). Ex-B.11 to Ex-B.13 and Ex-B.20 to Ex-B.25 are all separate kist receipts, for the period between 1976 and the date of Suit. They all stand in the name of defendant in respect of Suit 'B' schedule properties. These revenue records would corroborate the UDR Pattas in Ex-B.2, Ex-B.4 and Ex-A.6 and show that the parties are in separate possession and enjoyment of their respective portions of the suit properties while enjoying some in common.

Further, Ex-B.6 is the letter dated October 23, 1981 issued by Tamil Nadu Electricity Board to the defendant, stating that agricultural electricity service connection has been allotted in favour of the defendant in respect of the well in Survey No.26 which forms part of the suit properties.

Admittedly, Elachi @ Periakkal passed away in 1983. Separate patta, separate payment of kist, separate enjoyment from the year 1976 and separate agricultural electricity service connection in favour of the defendant in respect of a portion of the suit properties, probablizes the case of the defendant that oral partition took place during the lifetime of his mother - Elachi @ Periakkal, whereby the suit properties were more or less equally divided between him and his brother / plaintiff and whereafter the parties were in separate possession and enjoyment of their respective shares and accordingly the defendant is in exclusive possession and enjoyment of the Suit 'B' schedule properties. Thus, the defendant has proved his case of oral partition and pursuant possessory title over Suit 'B' schedule properties by way of preponderance of probabilities.

As stated supra, the plaintiff has failed to establish his case. The preponderance of probabilities lies in favour of the defendant. Hence, this Court is of the view that the plaintiff has not established his title over the Suit ‘B’ Schedule property or to any of the other reliefs sought for. Without properly appreciating the evidence available on record, the Trial Court had erroneously decreed the Suit. The first Appellate Court has not considered Ex.B.15 to Ex.B.25 additional evidence marked vide I.A.No.61 of 2000, and no reason has been assigned to disbelieve those documents. The First Appellate Court as well, without appreciating the evidence available on record including the additional documents marked before it vide I.A.No.61 of 2000, erroneously concurred with the decision of the Trial Court and dismissed the Appeal Suit. Substantial Question of Law (iii) is answered accordingly.

As regards Substantial Question of Law (ii), the First Appellate Court is not right in holding that the 'a person pleading title cannot plead adverse possession' in the facts of this case. In this case, the defendant's case is that he is in long exclusive possession and enjoyment of Suit 'B' schedule properties pursuant to an oral partition. While that is the core of his case, he pleaded that he also perfected title by adverse possession. His pleas are not contradictory to each other. In the facts and circumstances of this case, there is no bar to plead title and adverse possession at the same time, but the party must elect either one of them during trial. The defendant in this case impliedly elected possessory title pursuant to oral partition during trial. Hence, this Court does not find anything wrong with the same. Substantial Question of Law (ii) is answered accordingly.

For the reasons stated supra, this Court is inclined to allow the Second Appeal and set aside their Judgement and Decree.

In the result, this Second Appeal is allowed. The Judgment and Decree dated November 30, 2004 passed in A.S. No.51 of 1997 by the First Appellate Court is set aside. As a sequel, the Suit in O.S. No.612 of 1993 filed by the respondent / plaintiff is dismissed. Considering the relationship between the parties, there shall be no order as to costs. Connected Civil Miscellaneous Petition / Civil Miscellaneous Petition (Filing), if any, shall stand closed. 25 / 08 / 2026