A 40-year-old registered Will does not automatically prove title when suspicious circumstances remain unexplained, Madras HC rules

The suit properties originally belonged to Chinnappa Gounder, the maternal grandfather of the plaintiff and defendant.

The plaintiff relied on a registered Will dated 10 May 1956, under which Chinnappa Gounder allegedly granted a life interest to his daughter, Elachi @ Periakkal, and thereafter the properties to the plaintiff and male heirs to be born.

After Elachi’s death, the plaintiff claimed exclusive title under the Will and alleged that the defendant was permissively occupying the B-Schedule properties but had subsequently obtained UDR patta and trespassed into them.

The defendant denied the plaintiff’s exclusive title, contending that the properties were ancestral, that an oral partition had taken place during their mother’s lifetime, and that he had been in separate possession of the B-Schedule properties since then.

The Trial Court accepted the Will and decreed declaration and recovery of possession in favour of the plaintiff, while rejecting the claim for mesne profits.

The First Appellate Court confirmed the decree, holding that the defendant had admitted the Will, that the Will was more than thirty years old, and that the presumption under Section 90 of the Evidence Act applied.

It also allowed the defendant to produce additional documents under Order XLI Rule 27 CPC but did not adequately consider them in its judgment.

Whether the First Appellate Court was justified in upholding the Will without compliance with Sections 68 or 69 of the Indian Evidence Act, 1872?

Whether a defendant pleading title could also plead acquisition of title by adverse possession?

Whether the First Appellate Court was required to consider the additional documents admitted under Order XLI Rule 27 CPC?

A Will must ordinarily be proved in accordance with Section 63 of the Indian Succession Act, 1925 and Sections 68–71 of the Evidence Act; the propounder must establish the testator’s signature, testamentary capacity, knowledge of the contents, free volition and due attestation, and must remove all suspicious circumstances, as held in H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443.

The mandatory requirement of examining at least one attesting witness under Section 68 applies even where execution of the Will is not specifically denied or is admitted; the Court relied on Ramesh Verma v. Lajesh Saxena, (2017) 1 SCC 257, and related authorities.

Section 90 of the Evidence Act permits, in the Court’s discretion, a presumption regarding an original document more than thirty years old produced from proper custody; following the larger Bench decision in Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju, AIR 1968 SC 947, the Court held that the provision can apply to an old original Will, although suspicious circumstances may justify refusing to draw the presumption.

A party may plead both title and adverse possession in the alternative, but must elect the case pursued at trial.

As Chinnappa Gounder was the sole surviving coparcener, he could dispose of the properties by Will even if they were treated as ancestral.

Although the original registered Will was approximately forty years old and produced from the plaintiff’s custody, the Court declined to invoke the discretionary presumption under Section 90 because the Will contained suspicious features: the defendant was alive but was not expressly included or excluded; the Will contained an interlineation concerning “brothers to be born”; the testator was illiterate; and the plaintiff had omitted any reference to the Will in his first pre-suit notice, introducing it only in a subsequent notice.

These circumstances required examination of an attesting witness, the scribe, or persons acquainted with their signatures under Sections 68 or 69 of the Evidence Act.

The plaintiff examined none of them and took no steps to prove the Will through any statutory alternative method.

Accordingly, the Will was not legally proved, notwithstanding its registration, age, or the defendant’s failure to specifically deny its execution.

The Court further held that the defendant’s documentary evidence—separate pattas, UDR records, kist receipts, adangal and chitta extracts, and an electricity service connection—demonstrated separate possession and enjoyment of the B-Schedule properties from around 1976.

The documents also disclosed joint enjoyment of certain other portions, supporting the defendant’s case of an oral partition rather than a mere permissive occupation.

The defendant’s alternative plea of adverse possession was not legally barred, since he effectively elected during trial to rely primarily on possessory title arising from the oral partition.

The First Appellate Court also erred by failing to consider the additional documents admitted under Order XLI Rule 27 CPC.

It held that the plaintiff failed to prove the Will in accordance with Sections 68 and 69 of the Evidence Act and therefore failed to establish title to the B-Schedule properties.

The defendant’s evidence sufficiently probabilised an oral partition and his separate possession of those properties.

The suit for declaration and recovery of possession was consequently dismissed.

In view of the familial relationship, no order was made as to costs.