JUDGMENT 1. Plaintiff is the appellant. Suit is for partition of 3 items of properties which originally belonged to one Choyi who died in 1961. Plaintiff is the granddaughter of Paru, the second wife of Choyi, through Paru's daughter Devaki. Defendants 1 to 8 are the first wife of Choyi and their children. According to the plaintiff, the parties are in joint possession of the property and she is entitled to 1/9 shares. 2. Defendants contended that Paru was not the legally wedded wife of Choyi. Though Choyi died in 1961, no claim was ever made by the plaintiff and the allegation that they are in joint possession is also denied. Regarding item No. 1 it was contended that Choyi had executed a registered Will Ext. B-1 on 4th August 1930 bequeathing that item of property to defendants 1 to 4 and children to be born to the 1st defendant. So far as item No. 3 is concerned, according to them, it was gifted by Choyi to the 1st defendant under Ext. B-5 gift deed dated 4th September 1945. Thus they prayed for the dismissal of the suit. 3. The trial court decreed the suit, but in appeal the lower appellate court reversed the decree in respect of items 1 and 3, accepting the case of the defendants that the plaintiff will not get any right over the properties in view of Ext. B-1 Will and B-5 gift deed executed by Choyi. So far as item No. 2 was concerned, the decree of the trial court was confirmed on the ground that the plaintiff will be entitled to a share over the same by virtue of the provision contained in S.16 of the Hindu Marriage Act. The plaintiff has come up in appeal against the decree dismissing the suit in regard to items 1 and 3. Defendants have not challenged the decree in respect of item No. 2. 4. Portibility of items 1 and 3 will depend upon the question as to whether by Ext. B-1 will and B-5 gift deed the properties absolutely belonged to defendants 1 to 8. So far as Ext. B-5 is concerned, there is no challenge by the plaintiff and thus the lower appellate court was perfectly justified in accepting the same and dismissing the suit in regard to item No. 3. 5. In regard to Ext. B-1 will and B-5 gift deed the properties absolutely belonged to defendants 1 to 8. So far as Ext. B-5 is concerned, there is no challenge by the plaintiff and thus the lower appellate court was perfectly justified in accepting the same and dismissing the suit in regard to item No. 3. 5. In regard to Ext. B-1 Will the contention of counsel for the appellant - plaintiff is that the Will is not properly proved as enjoined under S.68 of the Evidence Act and that there is no evidence to show that it was executed by Choyi. Defendants have adduced evidence to the effect that both the attestors and the scribe of the document are dead. The lower appellate court raised a presumption of valid execution and attestation of Ext. B-1 Will under S.90 of the Evidence Act as the document was more than 30 years old as on the date of suit. Counsel for the appellant contended that the presumption under S.90 of the Evidence Act cannot be automatically raised and that it can be done taking into account all the circumstances of the case. All the circumstances of the case are in support of the case of the defendants that the property was bequeathed to defendants 1 to 8 under Ext. B-1. All the subsequent dealing of the property are by them. In such circumstances, a presumption under S.90 can very well be raised in regard to the execution, attestation and the state of mind of the testator. 6. A similar question was considered by their Lordships of the Privy Council in the decision reported in Munnalal v. Kushibai ( AIR 1947 PC 15 ). There also the question arose as to whether the presumption under S.90 can be raised in respect of a Will where it is not in accordance with the provision contained in S.68 of the Evidence Act. In Para.4 of that judgment their Lordships observed as follows : "The Will of Bahadur was more than 30 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 same 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." 7. In the light of the above decision of the Privy Council the due execution and attestation of the Will by Choyi can be presumed. No evidence has been adduced by the plaintiff to show that Choyi had no proper state of mind or had any other infirmity at the time when he executed Ext. B-1 Will. The lower appellate court was therefore right in accepting the Will and dismissing the suit in regard to item No. 1. 8. There is no merit in the appeal and accordingly it is dismissed, but, in the circumstances, without any order as to costs.