DAS, J. - (1.) THIS is an appeal by the objectors against a decision of Mr. Rule N. Roy, learned Subordinate Judge, 6th Court, 24 -Farganas, granting Letters of Administration to the es -tate of Giridhar Mondal with a copy of the Will dated 18 -2 -1920, annexed.
(2.) THE Will which is in question in this appeal was executed by Giridhar Mondal on 18 -2 -1920, and was registered on 10 -3 -1920. The terms of the Will will be set out hereafter. In order to appreciate the contentions which have been urged in this appeal it is necessary to set out the genealogical tree. JUDGEMENT_471_AIR(CAL)_1953.htm Panchangn Madhab Narayan(minor) Amit Durgaflas (unior) Dulal (minor) The testator was suffering from dysentery for some time and it is admitted by the witnesses on behalf of the propounder that his hands and feet - were swollen and that he was physically weak. No steps were taken to propound the Will till 1947. The testator died on 11 -7 -1921. The learned Subordinate Judge, as I have already said, granted Letters of Administration with a copy of the Will annexed. Mr. Roy Choudhury who has appeared in support of the appeal has raised several contentions. In the first place, he was contended that the Will has not been proved to have been duly executed and attested. In particular, he has admitted that there is no evidence that the formalities attending due attestation were complied with in this case. He has referred us to the evidence of the witnesses who had deposed to the attestation of the Will. The evidence of these witnesses merely shows that the testator signed the Will and that they attested the Will. It has not been definitely stated by them that they signed in the presence of the testator. On this submission, a question of law arises, namely, whether the Court is entitled to presume the due execution and attestation of a, Will such as the present one is, under Section 90, Evidence Act. The Will bears the date 18 -2 -1920. It was registered on 10 -3 -1920. The testator died on 11 -7 -1921. The Will was tendered for proof on 27 -6 -1950 and on that date the Will was proved by P. W, 1 Jogendra and was marked as Exht. 1.
(3.) UNDER Section 90, Evidence Act, the Court may presume that any document purporting to be, or proved to be, 30 years old, and produced from, proper custody, was duly signed by the person by whom it purports to have been signed. There is also a presumption' that in case of a document which purports to have been signed and attested the Court may presume that it was duly signed and attested. The question which has been canvassed in this appeal is that the presumption which arises under Section 90, Evidence Act, should not be drawn in case of a Will the genuineness of which is in controversy in the Probate Court. The reason suggested is that the propounder may antedate the Will andthereby call in his aid the presumption under Section 90, Evidence Act. Some support for this view may be found in a decision of this Court in the case of 'Shyam Lal Ghosh v. Rames wari Bosu', AIR 1916 Cal 938 (A). In a later decision of this Court in the case of - - 'Gobinda Chandra Pal v. Pulin Behary' : AIR1927Cal102 , the view expressed in the above case of 'AIR 1916 Cal 938 (A)' was distinguished on the ground that the observations therein contained were 'obiter dicta'. The view taken in the case of : AIR1927Cal102 was affirmed by this Court in the case of - - 'Mahendra Nath Surul v. Netai Charan Ghosh', ILR (1943) 1 Cal 392 (C). The view taken in the last two decisions of this Court has now been approved by the Judicial Committee in the case of - -'Munnalal v. Mst. Kashibai', AIR 1947 P C 15 CD),;