Section 90 Evidence Act Presumption Does Not Prove a Will: Strict Proof under Section 63(c) Succession Act and Section 68 Evidence Act; Limited Interference in Second Appeal
1. Introduction
The decision of the Chhattisgarh High Court in RAMPYARE v. RAMKISHUN (2026 CGHC 5238, decided on 29-01-2026) arises from a family property dispute concerning agricultural land at Village Paradol, District Korea (Chhattisgarh). The appellants (plaintiffs) Rampyare and Shivshankar claimed exclusive title and sought declaration, possession, and permanent injunction against their uncle (defendant No.1) Ramkishun, relying primarily on a registered Will dated 12/08/1958 (registered on 28/11/1958) allegedly executed by their grandfather Mahadev.
The central legal issue was: Can a Will, merely because it is more than 30 years old and produced from proper custody, be presumed to be duly executed and attested under Section 90 of the Indian Evidence Act, 1872? A connected procedural issue was the scope of interference in second appeal under Section 100 CPC against concurrent factual findings of the trial court and first appellate court.
The trial court dismissed the suit holding that the Will was not proved as required by law. The first appellate court affirmed. The plaintiffs approached the High Court in second appeal, contending that Section 90 Evidence Act should apply because the Will was over 30 years old and attesting witnesses had died.
2. Summary of the Judgment
- The High Court dismissed the second appeal and affirmed concurrent findings that the Will (Ex. P-2) was not proved in accordance with mandatory statutory requirements.
- The Court held that the presumption under Section 90 of the Evidence Act does not apply to Wills; a Will must be proved by strict compliance with Section 63(c) of the Indian Succession Act, 1925 read with Sections 68 and 69 of the Indian Evidence Act, 1872.
- Mere registration of a Will and its antiquity (being a 30+ year old document) do not dispense with proof of execution/attestation as required by law.
- No substantial question of law arose under Section 100 CPC because the appeal effectively sought re-appreciation of evidence against concurrent findings not shown to be perverse or contrary to law.
3. Analysis
3.1 Precedents Cited (and Their Influence)
(a) M.B. Ramesh (dead) by LRs. Vs. K.M. Veeraje URS (dead) by LRs & Ors (2013 (7) SCC 490)
This was the High Court’s principal authority to reject the appellants’ Section 90 argument. The Supreme Court held that:
“a presumption regarding documents 30 years old does not apply to a will” and a Will must be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act.
The Chhattisgarh High Court applied this ratio directly: even if the Will is more than 30 years old, the Court cannot presume due execution/attestation under Section 90.
(b) Ashutosh Samanta (Dead) by LRs & Ors. v. Ranjan Bala Dasi & Ors. ((2023) 19 SCC 448)
The High Court treated this as reaffirmation of M.B. Ramesh, reiterating that Section 90 presumption is inapplicable for proving Wills. The Supreme Court’s reasoning—quoted in the judgment—emphasizes that proof of a Will cannot rest on age alone and must comply with Sections 63(c), 68, and (where relevant) 69/71 of the Evidence Act framework.
(c) Bharpur Singh v. Shamsher Singh (2009 (3) SCC 687)
Though not elaborated independently, it is cited via M.B. Ramesh to support the proposition that the 30-year presumption does not apply to Wills. Its doctrinal influence lies in cementing the “Will-exception” to Section 90.
This precedent appears in the extracted portion of Ashutosh Samanta to explain the interplay of Evidence Act provisions:
Section 68 is mandatory for proof of a Will by at least one attesting witness; Section 71 is permissive, allowing other evidence in limited circumstances when attesting witnesses fail or deny execution. The High Court’s implicit message is that even where attesting witnesses are dead, the law provides specific routes (Section 69, and in special situations Section 71), but not Section 90 as a substitute.
This authority was used to define the limits of second appeal: a concurrent finding can be interfered with only if it is shown to be legally flawed—e.g., recorded de hors pleadings, based on misreading of material documentary evidence, contrary to law, or a conclusion no judicial mind could reach. The High Court used it to hold that the appellants’ challenge was essentially factual and did not raise a substantial question of law.
(f) Authorities relied on by appellants but not accepted
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Muddasani Venkata Narsaiah (Dead) through LRs Vs. Muddasani Sarojana (2016 (12) SCC 288)
The appellants invoked it to support Section 90 presumption for old documents. The High Court, however, followed the more specific and directly applicable Supreme Court line that Wills are excluded from Section 90-based proof.
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Goverdhandas Agrawal (since deceased) Vs. Gopibai Agrrawal, Wd/o Shri Nathmalji (2008 (1) M.P.L.J. 425)
Cited to argue that a 30-year old registered Will from proper custody attracts presumption. The High Court rejected this approach in light of binding Supreme Court precedent mandating strict proof for Wills.
3.2 Legal Reasoning
(i) Strict statutory method to prove a Will
The Court anchored its reasoning in the statutory architecture governing Wills:
- Section 63(c), Indian Succession Act, 1925: requires attestation by two or more witnesses, each having seen the testator sign/affix mark (or received personal acknowledgement), and each witness must sign in the testator’s presence.
- Section 68, Indian Evidence Act, 1872: if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness is called to prove its execution (subject to limited exceptions).
- Section 69, Evidence Act: provides the method where no attesting witness can be found (e.g., deceased)—proof then requires showing (a) the attestation of at least one attesting witness is in his handwriting, and (b) the signature/handwriting of the testator.
Applying these, the Court found that the plaintiffs did not prove the Will through the legally prescribed method: the scribe and attesting witnesses were dead, yet the plaintiffs did not successfully lead the kind of handwriting/secondary proof contemplated by Section 69. The supporting witnesses (P.W.-3 and P.W.-4) admitted they did not witness execution; the plaintiffs (P.W.-1 and P.W.-2) merely asserted execution without satisfying statutory proof requirements.
(ii) Why Section 90 Evidence Act presumption is inapplicable to Wills
The appellants’ key submission was: the Will is registered and more than 30 years old; hence due execution and attestation should be presumed under Section 90. The High Court rejected it for doctrinal and policy reasons accepted by the Supreme Court:
- A Will “speaks” only from the death of the testator; until then it is revocable and can be replaced or altered. Because it takes effect posthumously, the risk of fabrication and the need for strict proof are considered higher.
- Therefore, antiquity alone cannot validate it; the law insists on strict compliance with attestation and proof requirements.
- Registration does not cure defects in proof: it may be a relevant circumstance but does not substitute the mandatory evidentiary burden under Sections 68/69.
(iii) Second appeal discipline under Section 100 CPC
Having found the Will not proved, the Court independently held that even on procedure, the case did not cross the Section 100 CPC threshold. Both lower courts had concurrently evaluated evidence and returned factual findings. The second appeal sought re-appreciation of those findings, which is impermissible unless a substantial question of law arises.
The Court found no perversity, misreading of evidence, or legal misapplication, and therefore declined interference.
3.3 Impact of the Judgment
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Reinforcement of the “Will-exception” to Section 90:
Parties cannot prove old Wills (even registered and from proper custody) by relying on the 30-year presumption. This curbs attempts to prove testamentary documents through antiquity rather than statutory proof.
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Practical litigation consequence:
In rural/family property disputes where Wills are decades old and attesting witnesses are often deceased, litigants must plan proof through Section 69 routes (handwriting/signature evidence, experts, comparison, admissible contemporaneous writings), rather than expecting Section 90 to “carry” the case.
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Registration is not a shortcut:
The ruling reiterates that registration, while supportive, does not replace compliance with Succession Act/Evidence Act requirements.
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Second appeal gatekeeping:
The decision strengthens discipline under Section 100 CPC, discouraging second appeals that merely re-argue facts after concurrent findings.
4. Complex Concepts Simplified
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“Attestation” of a Will:
Not just signing as a formality. The law requires witnesses to sign after seeing the testator sign (or receiving acknowledgement) and to sign in the testator’s presence.
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Section 68 Evidence Act (mandatory rule):
If law requires attestation (like a Will), the document cannot be used in evidence unless at least one attesting witness is examined—when such witness is available.
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Section 69 Evidence Act (when witnesses are dead/unavailable):
The propounder must prove handwriting/signature of the testator and at least one attesting witness. This often involves handwriting experts, admitted signatures, or other legally admissible comparison material.
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Section 90 Evidence Act (30-year presumption):
A general rule allowing courts to presume authenticity of old documents from proper custody. But Supreme Court jurisprudence treats Wills differently—they must still be proved strictly.
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“Substantial question of law” in Section 100 CPC:
A serious legal issue affecting the decision (not merely disagreement over facts). Second appeal is not a “third round” of fact-finding.
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“Concurrent findings of fact”:
When both trial and first appellate courts find the same facts. Higher courts ordinarily do not disturb these unless they are perverse or legally untenable.
5. Conclusion
RAMPYARE v. RAMKISHUN reiterates a clear rule: Section 90’s presumption for 30-year-old documents does not prove a Will. A Will—registered or unregistered, old or new—must be proved through the strict statutory mechanism under Section 63(c) of the Indian Succession Act and Sections 68/69 (and where applicable 71) of the Evidence Act. The decision also exemplifies the restrained role of the High Court in second appeal under Section 100 CPC, refusing to reopen concurrent factual findings absent perversity or a genuine substantial question of law.