JUDGMENT: The respondent in A.S.No.51 of 1983 on the file of the Subordinate Judge, Periakulam has filed the second appeal challenging the judgment and decree passed by the said Court. 2. The appellant/ plaintiff filed O.S.No.188 of 1981 on the file of the Court of District Munsif, Uthamapalayam for declaration and delivery of possession of the suit property. Learned District Munsif after considering the relevant issues decreed the suit and on appeal by the defendant, the first appellate Court reversed the judgment and decree and hence the second appeal. 3. The only respondent/ first defendant has not appeared in the second appeal and on hearing the arguments of learned counsel for the appellant and after perusing the records, the judgment is delivered. 4. The following substantial questions of law have been framed in the second appeal: "(1) Whether the Court below erred in holding that the presumption regarding the genuineness of the Will contemplated under Sec.90 of the Evidence Act, could not be invoked since the registration copy of the Will Ex.A-2 has been produced? (2) Whether the Court below erred in holding that the execution of the Will should be proved even if the registered will had been executed as early as 17.9.1937? (3) Whether the Court below failed to see the right of the plaintiff Devasthanam to take possession of the suit property would arise only if the terms and conditions of the registered will dated 17.9.1937 had been contravened and that the donee Rajammal was entitled to enjoy the property during the life time without alienating the suit property? (4) Whether the Court below erred in holding that the respondent was a bona fide purchaser for value without notice while the vendee was only the sister’s son of the vendor? (5) Whether the Court below erred in holding that the non-examination of Rajammal who was a beneficiary under the Will would be fatal to the plaintiff’s case? (6) Whether the Court has wrongly shifted the onus of proof on the plaintiff?" 5. One P.S.Balasubramania Pillai who lived in Bodinayackanur executed a Will dated 17.9.1937 marked as Ex.A-2 in favour of the plaintiff- temple. (6) Whether the Court has wrongly shifted the onus of proof on the plaintiff?" 5. One P.S.Balasubramania Pillai who lived in Bodinayackanur executed a Will dated 17.9.1937 marked as Ex.A-2 in favour of the plaintiff- temple. In the said Will, he has stated that his wife Tmt.B.Rajammal was entitled to be in possession and enjoyment of the properties shown in the Will till her lifetime without any right of encumbrance or alienation and further directed that out of the income from the said properties she has to perform his Sradha and other rituals such as feeding of poor and also special poojas in the temple of Arulmighu Subramanya Swamy, Tiruchendur. He has also permitted her to appoint an agent to perform such charities and further directed that in case of failure, the Trustees of plaintiff- temple should take possession of the property in order to perform the abovesaid charities and poojas. It was alleged that under Ex.A-1, an endowment was created by the testator. Rajammal had an younger sister who had two sons and the first son. Sivanantha Perumal brought up by her was appointed as power agent for Rajammal. The respondent herein K.Sankaran is the brother of Sivanantha Perumal and Rajammal’s sister’s son Sivanantha Perumal as power agent sold the suit property in favour of the respondent Sankaran under Ex.A-6 sale deed dated 3.5.1967. The fact of execution of the Will Ex.A-2 was not brought to the knowledge of the plaintiff- temple. Apart from that, other properties were also alienated by Rajammal and her power agent Sivanantha Perumal. The respondent has relied upon a suit filed by Rajammal in O.S.No.134 of 1963 on the file of the Subordinate Judge, Dindugal to show that the said suit filed by Rajammal for recovery of possession or in the alternative for recovery of money from the defendants therein was dismissed and Rajammal has not filed any appeal against the said judgment and decree. The respondent herein was the second defendant in the said suit. This fact was shown in paragraph 5 of the written statement filed by the respondent in the present suit and the Courts below have also considered the said decree passed in O.S.No.134 of 1963. The second defendant in the present suit one Raghavan was the tenant of the suit premises. This fact was shown in paragraph 5 of the written statement filed by the respondent in the present suit and the Courts below have also considered the said decree passed in O.S.No.134 of 1963. The second defendant in the present suit one Raghavan was the tenant of the suit premises. The respondent herein filed H.R.C.O.P. No.1 of 1975 on the file of the Rent Controller/ District Munsif, Periakulam and obtained a decree and filed E.P.No.96 of 1978 against the second defendant for delivery of the suit property. At that stage, the second defendant informed the plaintiff- temple of its right under Ex.A-2 Will and thereafter the plaintiff has come forward with the present suit. 6. The trial Court for valid reasons decreed the suit as prayed for by the plaintiff whereas the appellate Court in A.S.No.51 of 1983 for various reasons stated in paragraph 5 of its judgment allowed the appeal and dismissed the suit. This Court under Sec.100, C.P.C. cannot go into the question of facts of the case and however, the various substantial questions of law framed herein can be gone into. 7. In the written statement, the respondent herein has pleaded that throughout Rajammal was dealing with the property as of her own and he has purchased the property from her power agent Sivanantha Perumal for valid consideration of Rs.10,000 and contended that he is a bona fide purchaser for value without notice. The defendant has also contended that he is not admitting the truth and validity of the Will dated 17.9.1937 and the absolute right of Balasubramania Pillai over the suit property to bequeath the said property in favour of the plaintiff- temple. Ex.A-2 Will was executed on 17.9.1937 and the existence of the Will was brought to the notice of the plaintiff only in the year 1978 and thereafter the plaintiff has issued a notice dated 6.7.1978 to the defendants and filed the suit. The lower appellate Court has contended that the plaintiff- temple has come forward with this suit after 41 years. Such a contention cannot be accepted on the simple reason that the existence of the Will was brought to the knowledge of plaintiff- temple only in 1978 and thereafter, they have taken action against the defendants without any delay. The lower appellate Court has contended that the plaintiff- temple has come forward with this suit after 41 years. Such a contention cannot be accepted on the simple reason that the existence of the Will was brought to the knowledge of plaintiff- temple only in 1978 and thereafter, they have taken action against the defendants without any delay. The fact that the Will was not enforced by the plaintiff also shown as a reason in order to arrive at a finding against the plaintiff- temple by the first appellate Court and the same cannot be appreciated for the simple reason that Rajammal has right of enjoyment of the property during her life time and in the event of non-performing of the charities and poojas, the Trustee of plaintiff- temple was given the authority for taking possession of the property and to do the various charities directed under the Will. During the life time of Rajammal, the plaintiff- temple has no right to take delivery of the property except for the non-performance of the conditions by Rajammal. The various transfers and alienations effected by Rajammal were not brought to the knowledge of the plaintiff- temple and as such, the said reason stated by the first appellate Court cannot be appreciated. 8. The respondent has denied the truth and validity of Ex.A-2 Will dated 17.9.1937. As the suit came for trial in 1982, none of the attestors was alive for their examination before the trial Court. The attestors were one Annamalai Pillai, son of Kuppa Pillai of Bodinayackanur, (2) Velayutha Pillai, Assistant Karnam, son of Subramania Pillai of Bodinayackanur, and (3) Nalla Kamu Chettiar, son of Kamatchi Chettiar, Honorary Magistrate. 9. For the valid execution and attestation of a Will, Their Lordships of the Supreme Court in Venkatachala Iyengar v. Thimmajamma, A.I.R. 1959 S.C. 433 at 451 have held: "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. Secs.67 and 68, Evidence Act are relevant for this purpose. Secs.67 and 68, Evidence Act are relevant for this purpose. Under Sec.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 Secs.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Sec.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, Secs.59 and 63 of the Indian Succession Act are also relevant. Sec.59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and three illustrations to this Section indicate what is meant by the expression "a person of sound mind" in the context. Sec.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." 10. In case of the death of all or any one of the attestors, his or her signature can be identified by a witness and the execution of the Will can be proved thereby. In case of the death of all or any one of the attestors, his or her signature can be identified by a witness and the execution of the Will can be proved thereby. In Lakshmi Ammal v. Lakshmanan, (1988)2 M.L.J. 469 at page 476, this Court held: "When all the attesting witnesses are no more, the Will has then to be proved under Sec.69 of the Evidence Act, by showing that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person." 11. In the instant case, one of the reasons stated by the lower appellate Court is that the original Will was not produced. However, in his written statement at para.5, the respondent herein has stated the fact of filing of O.S.No.134 of 1963 by Rajammal and the dismissal of the said suit on 25.1.1971. Therefore, there is pleading on the side of the respondent to show that Rajammal has filed the said suit. A copy of the judgment, though not marked, can be taken into consideration to find out the truth of the said Will. In paragraph 5 of the said judgment, the learned Subordinate Judge, Dindugal has stated that the said Will dated 17.9.1937 was marked as Ex.A-II. It is not out of place to state that Ex.A-2 Will executed by Balasubramania Pillai was not registered immediately of its execution and due attestation on 17.9.1937. Ex.A-2 shows that Rajammal has produced the Will for registration on 11.10.1937, as Balasubramania Pillai died after 17.9.1937 but before 11.10.1937, in the office of the Sub Registrar at Bodinayackanur that two witnesses by name Chinnathambi Rowthar and N.A.Ramasamy Naicker of Bodinayackanur have identified Rajammal before the Sub Registrar who in turn has made an endorsement that on his examination of those witnesses, he had satisfied that the testator has signed the Will and Rajammal had right to produce the Will for the purpose of registration. The said endorsement found in Ex.A-2 would go to show that Rajammal had taken the Will to the Office of the Sub Registrar for registration and the same was registered by the Sub Registrar after due enquiry from the witnesses to have the satisfaction that the testator has signed the Will. 12. The said endorsement found in Ex.A-2 would go to show that Rajammal had taken the Will to the Office of the Sub Registrar for registration and the same was registered by the Sub Registrar after due enquiry from the witnesses to have the satisfaction that the testator has signed the Will. 12. Ex.A-2 Will is more than 30 years old and the provisions of Sec.90, Indian Evidence Act is applicable to the said document. Learned Subordinate Judge, Dindugal in his judgment in O.S.No.134 of 1963 dated 25.1.1971 referred by the respondent in paragraph 5 of the written statement has accepted the evidence of Rajammal as P.W.1 who gave evidence that she was present at the time of due and valid execution and attestation of the said Will by her husband. It is also clear from the said judgment that Rajammal produced the original of Ex.A-2 in the said Court which was marked as Ex.A-II in that suit. Rajammal was given the power of enjoyment and to perform the various charities and poojas as directed by the testator without any power of transfer or alienation. The judgment in O.S.No.134 of 1963 would prove that Rajammal was in possession of the original which was in the proper custody. 13. The Karnataka High Court in Ramanatha Gupta v. Razaack, A.I.R. 1982 Karn. 314 at 317, held: "When once it is held by the Court that the document has come from proper custody and the document is an ancient document, the presumption under Sec.90 of the Evidence Act may be raised holding that the signature is of the person mentioned in the document." 14. A Division Bench of the Calcutta High Court in Probhat Chandra v. Rani Bala, A.I.R. 1989 Cal. 202, held: ”It may be noted that Sec.90 gives a discretion to the Court to presume about the genuineness of certain documents. Now whether or not this presumption is to be made in favour of a particular transaction, will depend upon the facts of the case." 15. A Division Bench of the Patna High Court in Haradhan Mahatha v. Dukhu Mahatha, A.I.R. 1993 Pat. 129, held: "The principle underlying Sec.90 is that if a document, thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the Court may presume that it has been duly executed and attested. A Division Bench of the Patna High Court in Haradhan Mahatha v. Dukhu Mahatha, A.I.R. 1993 Pat. 129, held: "The principle underlying Sec.90 is that if a document, thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the Court may presume that it has been duly executed and attested. The reason for incorporating Sec.90 is founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove handwriting, signature and execution and attestation of ancient documents, after lapse of many years. Further reason for incorporating this provision is that if the two conditions enumerated in Sec.90 are fulfilled, then in relation to documents the execution and attestation of which are not denied, the necessity of formal proof is waived and thereby Court’s time is saved." 16. From these decisions, it is clear that if a document (a Will herein) is more than 30 years old and it is produced from proper custody, the Court can presume valid execution and due attestation of the said document. In the instant case, the proof of the Will Ex.A-2 executed in 1937 came before the Court in 1982, i.e., 45 years thereafter, though the original will has not been produced by Rajammal in this suit. The fact remains that she has produced the same in the Sub Court, Dindugal in O.S.No.134 of 1968 and had also examined as P.W.1 in the said suit regarding the due execution and attestation of the Will. Under Sec.90 of the Evidence Act, when the said Will is more than 30 years old and the same was produced by Rajammal in the said suit, the proper custody of the document cannot be questioned. Admittedly, the Will was of the year 1937, a document of more than 30 years old. The first appellate Court has erred in coming to a conclusion against the validity and the genuineness of the said Will. Though the respondent has challenged that the properties covered under the Will are not the absolute properties of Balasubramania Pillai, he has neither let in any evidence nor had taken any steps to prove the said allegation. Ex.A-2 cannot be thrown out on the ground that it is only a registration copy, since there is ample evidence to show that the original of Ex.A-2 was produced by Rajammal in the Court of the Subordinate Judge Dindugal. Ex.A-2 cannot be thrown out on the ground that it is only a registration copy, since there is ample evidence to show that the original of Ex.A-2 was produced by Rajammal in the Court of the Subordinate Judge Dindugal. The plaintiff-Temple have given sufficient reasons for the true and valid execution and attestation of the Will Ex.A-2. The Court below has erred in holding that Ex.A-2 Will which was more than 30 years old and produced by Rajammal in the other suit, has not been proved. 17. The Court below has further erred in holding that the plaintiff has no right to take possession of the property during the life time of donee Rajammal. Rajammal was given the right of enjoyment of the properties and also the income therefrom till her lifetime and she has to fulfill certain conditions shown in the Will and no power of transfer of any kind or alienation was given to her. Rajammal should maintain an account and she can appoint an agent to fulfill those conditions and in the event of her failure to fulfill the conditions stated by the testator under the Will, the Trustee of the plaintiff Devasthanam can take delivery of the properties and do the charities shown thereunder. The Will being 30 years old and produced by Rajammal under proper custody has been proved. The genuineness of the Will cannot be doubted since Rajammal herself has registered the Will by producing the same in the Sub Registrar’s Office at Bodinayackanur and the Sub Registrar, after having satisfied by examining the witnesses, has registered the Will and the execution of the Will by the testator has been proved by the endorsement made by the Sub Registrar. 18. Rajammal has done every act against the direction of the testator during her life time and after making many encumbrances and alienations in respect of all the suit property including the present suit property through her power agent Sivanantha Perumal filed a suit against the respondent herein and others which was dismissed by the Sub Court, Dindugal. In such circumstances, when there is a clear direction in the Will that the Trustee of the plaintiff- temple can take delivery of the properties and fulfill the direction given in the said Will, the suit filed by the plaintiff cannot be questioned. In such circumstances, when there is a clear direction in the Will that the Trustee of the plaintiff- temple can take delivery of the properties and fulfill the direction given in the said Will, the suit filed by the plaintiff cannot be questioned. Further as per the Will, the absolute right over the properties is given to the temple and Rajammal had only the right of enjoyment of the said properties during her life time by fulfilling the conditions shown thereunder and nothing more. In these circumstances, the finding of the first appellate Court cannot be accepted. 19. The respondent herein has contended that he is a bona fide purchaser for value without notice. In the judgment in O.S.No.134 of 1968, it was held that Sivanantha Perumal and the respondents are brothers and sons of the sister of Rajammal who were brought up by her since their childhood. The respondent has admitted in his evidence that she is the elder sister of his mother. In such circumstances, being the younger sister’s sons of Rajammal and as he and his brother Sivanantha Perumal were brought up by Rajammal, he cannot be allowed to contend that he was a bona fide purchaser of the proeprty without notice. The fact remains that in O.S.No.134 of 1968, she has contended that the respondent herein has got no means to pay the sale consideration of Rs.10,000/- for the purchase of the property from his brother Sivanantha Perumal, her power agent. Considering all these facts, it is clear that the document Ex.A-6 cannot be held to be valid and no title was passed to the respondent in view of the alleged execution of the said document that he is not a bona fide purchaser for value without notice and as such, the said finding of the Court below has to be set aside. 20. The Court below has held that the non-examination of Rajammal was fatal to the case of the plaintiff. When Rajammal has conducted herself in such a way to do everything against the wishes of the testator, no one could expect that Rajammal would be examined on the side of the plaintiff. 20. The Court below has held that the non-examination of Rajammal was fatal to the case of the plaintiff. When Rajammal has conducted herself in such a way to do everything against the wishes of the testator, no one could expect that Rajammal would be examined on the side of the plaintiff. As already stated, Rajammal was given the right of enjoyment during her life time and as her power agent has alienated the property during her life time, it can be said that her power agent has not acted in accordance with the true intention of the testator under the Will. Therefore, the non-examination of Rajammal on the side of the plaintiff cannot be a reason to hold that the plaintiff has failed to prove his case. On the contrary, the defendant herein could have either examined Rajammal or her power agent to prove that he is a bona fide purchaser for value without notice and he has not done so. Apart from examining himself, he has not examined any other witness. In these circumstances, the reason assigned by the Court below cannot be accepted. The Court below in paragraph 5 of its judgment has given various reasons to show that the plaintiff has not discharged his burden of proving the Will dated 17.9.1937. The very approach of the Court below was not in accordance with law. Every one of the reasons stated by the said Court are totally against law and the standard of proof which is expected in the facts and circumstances of the case. It is the duty of the plaintiff to prove his case and even after the plaintiff letting in sufficient evidence, the Court below has interfered with the well considered judgment passed by the trial Court on irrelevant consideration and as such, though the plaintiff is duty bound to prove his case, the reasons stated by the Court below to arrive at the finding are not in accordance with law. 21. In the foregoing paragraphs, all the questions of law framed herein are answered and though the respondent is absent in the second appeal, learned Counsel Mr.Ashok Menon in his elequent argument has brought out every error committed by the Court below and a perusal of records in the open Court, has further strengthened his contentions. 21. In the foregoing paragraphs, all the questions of law framed herein are answered and though the respondent is absent in the second appeal, learned Counsel Mr.Ashok Menon in his elequent argument has brought out every error committed by the Court below and a perusal of records in the open Court, has further strengthened his contentions. The foregoing reasons prove that every one of the substantial questions of law framed herein is answered against the respondent and in favour of the appellant and as such, the second appeal has to be allowed. 22. In the result, the judgment and decree in A.S.No.51 of 1983 on the file of the Subordinate Judge, Periakulam are set aside and S.A.No.763 of 1988 is allowed and the judgment and decree of the trial Court are restored. The respondent/ first defendant shall bear the costs throughout.