JUDGMENT : In this Second Appeal, the substantial question of law that arises for consideration mainly relates to proof of Will dated 28.12.1963 said to have been executed by one Krishnaji Annaji Bhasme. Both the attestors and the scribe of the Will being dead, the plaintiff chose to examine the son of the scribe as P.W.3 and another witness acquainted with the handwriting of the testator as P.W.4. Since according to the defendants who have preferred this appeal, the evidence of P.Ws. 3 and 4 does not meet the requirement of Section 69 of the Indian Evidence Act, 1872 (‘the Act’, for brevity) the substantial question of law framed at the time of admission is as follows :- “Whether the evidence of P.W.3 and P.W.4 can be brought within the scope of Section 69 of the Evidence Act in proof of the Will?” 2. Before dealing with this question, a brief reference may be made to the pleadings :- One Annappa Bhasme had five sons namely Ramachandra, Krishnaji, Bhimrao, Srinivasarao and Naryanarao. They belonged to Namadev Shimpi caste. Annappa Bhasme possessed properties, one of which being 4 acres 6 guntas of land in Sy. No. 646 of Machche village adjoining BelagaviKhanapur road. In this land there exists a bungalow, a servants’ quarters, a well, a pump house and a mango yard. Annappa Bhasme died in the year 1924. In the year 1948 his sons partitioned the properties among themselves and in that partition, the land in Sy. No.646 including the bungalow, servants’ quarters, well, pump house, mango yard and a house situated at the town, was allotted to the share of his second son Krishnaji Bhasme. 3. Krishnaji Bhasme was living in the bungalow. He lost his wife. One Rukmini Bai belonging to maratha caste and who had been discarded by her husband was looking after him in the bungalow. She had a son by name Jayavant, who was born to her in the wedlock with her husband. But, Krishnaji Bhasme treated this Jayavant as his foster son. Since Krishnaji was addicted to alcohol, to meet his expensive habits, he sold his town house in the year 1956. Later, in order to maintain himself, he sold half portion of the suit property in Sy. No. 646 to his brother Bheemrao Bhasme by executing a sale deed on 17.5.1957. Bheemrao Bhasme died in the year 1963. Since Krishnaji was addicted to alcohol, to meet his expensive habits, he sold his town house in the year 1956. Later, in order to maintain himself, he sold half portion of the suit property in Sy. No. 646 to his brother Bheemrao Bhasme by executing a sale deed on 17.5.1957. Bheemrao Bhasme died in the year 1963. Then Bheemrao Bhasme’s son, Shankar Rao Bhasme, the original plaintiff, succeeded to the property purchased by his father from Krishnaji Bhasme. Krishnaji Bhasme decided to sell the remaining half portion of the land in Sy. No.646, and on 28.12.1963, he sold that remaining portion to the plaintiff – Shankar Rao Bhasme. But, in the remaining half portion, there was a strip of land measuring 20 guntas under the occupation of tenant. Since there was statutory bar for transfer of tenanted lands, this 20 guntas of land was not included in the sale deed dated 28.12.1963 although Krishnaji Bhasme had received the sale consideration from the plaintiff for the entire land including this 20 guntas of land. It is the further case of the plaintiff that, on 28.12.1963 itself Krishnaji Bhasme executed a Will in favour of the plaintiff in respect of 20 guntas of land, which could not be included in the sale deed. According to the plaintiff, Krishnaji Bhasme died on 8.10.1979. Therefore, the plaintiff became the absolute owner of the entire 4 acres 6 guntas of land in Sy. No. 646 having succeeded to the property purchased by his father under the sale deed dated 17.5.1957 and another sale deed and the registered Will executed on 28.12.1963. 4. Jayavant, son of Rukmini Bai, was staying in the servants’ quarters free of rent. Besides being servant of Shankar Rao Bhasme, he was also supervising the agricultural operations. Shankar Rao Bhasme was paying monthly salary to him. He died on 2.1.1994. This Jayavant had never laid claim on the property so long as he was alive. After his death, the defendants made a false vardhi on 25.1.1993 to the revenue authorities showing that Jayavant was the son of Krishnaji Bhasme. They incorrectly stated that Krishnaji Bhasme died on 10.1.1993 although he had died in the year 1979 itself. On the basis of this vardhi, they got the revenue records mutated to their names. After his death, the defendants made a false vardhi on 25.1.1993 to the revenue authorities showing that Jayavant was the son of Krishnaji Bhasme. They incorrectly stated that Krishnaji Bhasme died on 10.1.1993 although he had died in the year 1979 itself. On the basis of this vardhi, they got the revenue records mutated to their names. Then they filed a suit O.S. No.209/1994 against the plaintiff seeking declaration of their title over the entire land in Sy. No.646 and consequential permanent injunction. The said suit was dismissed for nonprosecution. Since the defendants disputed the title of the plaintiff, he had to institute a suit O.S. 79/1995 before the III Addl. Senior Civil Judge, Belagavi, seeking the reliefs of declaration of his title, possession of out house portion and permanent injunction. 5. The defendants’ case is that Jayavant was the son of Krishnaji Bhasme and Rukmini Bai. She was not the kept- mistress of Krishnaji, she was his wife. Admitting that Krishnaji Bhasme sold southern half portion of the land in Sy. No. 646 to Bheemrao on 17.05.1957 they stated that the farm house (bungalow) and the outhouse were never sold by Krishnaji Bhasme to Bheemrao or anybody else. Krishnaji Bhasme was living in the bungalow till his death and after the death his son Jayavant continued to be in possession of the house and after the death of Jayavant, defendant No.1 is in actual and peaceful possession of the bungalow and landed properties. They also contend that 20 guntas of land, which is the subject matter of the Will is also in their possession and enjoyment. The plaintiff has no right, title or interest in respect of 20 guntas of land as it was never sold by Jayavant or Krishnaji Bhasme. 6. As regards the Will dated 28.12.1963, the defendants have stated that with respect to 20 guntas of land, Krishnaji Bhasme never executed a Will. The Will putforth by the plaintiff is sham, bogus and created and had never been acted upon. Since Jayavant was the son of Krishnaji, there was no reason for Krishnaji executing a Will preventing Jayavant from succeeding to his property. They admit that they filed suit O.S. No. 209/1994 seeking declaration of their title and permanent injunction against the plaintiff. They state that 2 houses bearing V.P.C. Nos. Since Jayavant was the son of Krishnaji, there was no reason for Krishnaji executing a Will preventing Jayavant from succeeding to his property. They admit that they filed suit O.S. No. 209/1994 seeking declaration of their title and permanent injunction against the plaintiff. They state that 2 houses bearing V.P.C. Nos. 1237 and 118 were constructed by Krishnaji in the land bearing No. 646 and another house bearing V.P.C. No. 1237 was constructed by Jayavant and therefore these houses and 20 guntas of land were the self acquired properties of Krishnaji and that they succeeded to the entire property after the death of Krishnaji. Thus, the defendants contend that the plaintiff’s case is baseless and it has to be dismissed. 7. The trial Court held that the plaintiff was able to prove the execution of the Will, and therefore, decreed the suit. The First Appellate Court concurred with the findings of the trial Court and dismissed the appeal filed by the defendants. Therefore, the defendants have preferred this second appeal. 8. The appellant has also filed an application, I.A. No.1/2017, under Order XLI Rule 27 of C.P.C. for production of death extract of late Krishnaji by way of additional evidence. This application was also considered along with the merits of the case. The intention of the appellants by producing the death extract is to show that Krishnaji died on 10.01.1993 and not in the year 1979. The 1st appellant who has sworn to an affidavit has stated therein that he could not produce the death extract as he could not trace out this document during pendency of the suit. When he was giving instructions to his counsel for preparing the appeal, he could notice from the documents Exs.P-1 to P-5 that the name of Krishnaji was shown as Bhasme Krishnaji Annaji and therefore, he applied for obtaining his death extract mentioning this name. Thus he was able to get this document. He has stated that this document is very relevant for arriving at just decision. 9. The learned counsel for the respondents has not taken any objection for this application. Having regard to the reason that has been stated in the affidavit and the fact that the actual date of death of Krishnaji has some importance, the application under Order XLI Rule 27 of C.P.C. is allowed. 9. The learned counsel for the respondents has not taken any objection for this application. Having regard to the reason that has been stated in the affidavit and the fact that the actual date of death of Krishnaji has some importance, the application under Order XLI Rule 27 of C.P.C. is allowed. Both the counsel submitted that there was no need to record oral evidence on this document, and therefore, this document is straight away taken on record in this appeal and the same is referred to at an appropriate stage. 10. The learned counsel for the appellants argued that the proof of execution of a Will should be in accordance with Sections 68 and 69 of the Act. At least one of the attestors should be examined, and if no attestor is available, his son or daughter should be examined to identify the signature of the attestor. In the instant case, P.W.3 is not the son of an attestor to the Will in question; he is the son of the scribe. P.W.3 has identified the signature of his father, who being a scribe, could not have subscribed his signature to the Will in the capacity of an attestor. He argued that if the scribe’s signature could be considered as that of an attestor, the intention to be an attestor also should be forthcoming in the document itself. In the disputed Will the father of P.W.3 has not signed in the space provided for putting attestor’s signature, rather below the signature, the word ‘scribe’ is written making it explicitly clear that he was just a scribe without having an intention to attest. Therefore, the evidence of P.W.3 does not meet the requirement of Section 69 of the Act. In this regard, he relied upon a judgment of the Supreme Court in N. Kamalam (dead) and Another v. Ayyaswamy and Another [ 2001 (7) SCC 503 ]. 11. As regards the evidence of P.W.4, the argument of the learned counsel for the appellant was that even his evidence could not be considered, as from his evidence itself it can be made out that he was not acquainted with the handwriting of the executor. His evidence, therefore, does not help the plaintiff in any way. 12. 11. As regards the evidence of P.W.4, the argument of the learned counsel for the appellant was that even his evidence could not be considered, as from his evidence itself it can be made out that he was not acquainted with the handwriting of the executor. His evidence, therefore, does not help the plaintiff in any way. 12. The learned counsel for the appellants also argued that the approach of the Courts below by putting the entire burden on the defendants to prove the Will is highly erroneous. It was his argument that the Will has to be proved by its propounder. Even presumption under Section 90 of the Act is not available to a Will executed 30 years back 13. Meeting the points raised by the appellants’ counsel, the learned counsel for the respondents argued that P.W.3 has given evidence about attestation of the Will by his father who was the scribe of the Will also. P.W.3 has not been cross-examined with regard to whatever he has stated about attestation of the Will by his father being a scribe. Therefore, evidence of P.W.3 cannot be discarded. His statement in examination-in-chief must be accepted, and in support of this point, he referred to two judgments (1) A.E.G. Carapiet vs. A.Y. Derderian [AIR 1961 Calcutta 359]; and (2) Amar Singh v. The State of Bihar, [ 1971 (3) SCC 273 ]. On this aspect he further argued that there was no law as such that the scribe could not act as an attestor. If it is possible to gather from the evidence that the scribe had an intention to attest, the evidence of the scribe could be acted upon. When the scribe was found to be dead, P.W.3 was examined to identify the signature of his father. 14. Besides examining P.W.3, P.W.4 - a Doctor was also examined for the purpose of identification of the handwriting of the testator Krishnaji Bhasme. If the entire evidence of P.W.4 is perused, there is nothing to discredit his evidence. Therefore, it is his argument that the courts below have appreciated the facts and evidence correctly to come to conclusion that execution of the Will has been proved according to law. There are no reasons to disturb these findings. 15. If the entire evidence of P.W.4 is perused, there is nothing to discredit his evidence. Therefore, it is his argument that the courts below have appreciated the facts and evidence correctly to come to conclusion that execution of the Will has been proved according to law. There are no reasons to disturb these findings. 15. Now considering the arguments of the learned counsel for the appellants and the respondents, it has to be stated that the principles governing the proof of execution of a Will are well settled. Section 68 of the Act is very clear about the procedure to be followed for proving the will if the attestors are available. So there is no need to refer to good number of case law cited by the learned counsel in this regard. 16. From the evidence placed before the court it is very clear that both the attestors to the Will, Ex.P-11, were not available as they were dead. Therefore, Section 69 of the Act comes into picture. The requirement of Section 69 of the Act is providing proof to the effect that attestation of one attesting witnesses is at least in his (attestor’s) handwriting and signature of the person executing the document is in the handwriting of that person (executor). Section 69 of the Act doesn’t say that only a son or daughter of an attestor should be examined. The purport of section 69 of the Act is that anybody acquainted with the handwriting of the attestor and the executant can be examined. If a son or a daughter is examined, his or her evidence may be given due weightage. If none of them is available, any person acquainted with handwriting of the attestor or executant can be examined. Here in this case, as submitted by the respondents’ counsel, nobody belonging to the family of the attestor could be secured before the court for examination. Therefore, the plaintiff had to examine P.W.3, the son of the scribe. As it has been argued by the appellants’ counsel that scribe cannot be an attestor, this point has to be dealt with first. 17. The learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of N. Kamalam (supra). Therefore, the plaintiff had to examine P.W.3, the son of the scribe. As it has been argued by the appellants’ counsel that scribe cannot be an attestor, this point has to be dealt with first. 17. The learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of N. Kamalam (supra). In this judgment it is held as below :- “It is to be noticed that the word “attested”, the thing to be defined, occurs as part of the identification itself. To attest is to bear witness to a fact, briefly put, the essential conditions of valid attestation under S. 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestendi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. 18. What needs to be stated on reading the above observation of the Supreme Court is that, unless there is animo attestandi, a person cannot be called an attestor. What is important is intention to attest. In another decision of the Division Bench of the Madras High Court in Kamakshi Ammal v. Rajalakshmi and others [AIR 1995 Madras 415] it is very clearly held that even a scribe can be treated as an attesting witness, provided the scribe has an intention to attest. The intention can be gathered from the document or even can be inferred from circumstances regarding which evidence must be available. 19. Here, in Ex.P-11, the scribe’s signature is not found in the place where attestors have signed. Below the signature, the word ‘scribe’ is written. The plaintiff examined P.W.3, the son of the scribe. His evidence in chief is as follows :- “Late Sri Sadashiv Tariharkar was my father. He was a scribe by profession. He had also secured a licence as a bond writer. Below the signature, the word ‘scribe’ is written. The plaintiff examined P.W.3, the son of the scribe. His evidence in chief is as follows :- “Late Sri Sadashiv Tariharkar was my father. He was a scribe by profession. He had also secured a licence as a bond writer. He had his own office at Shanivar Khoot Belgaum. He died on 30.07.1994 at Belgaum. He used to subscribe his signature in English. My father used to attest the documents written by him as scribe. I can identify his signature, if shown to me.” 20. This witness has identified the signature of his father as Ex.P-11(b). He has also stated that the handwriting found in Ex.P-11 was that of his father. 21. So the evidence given by P.W.3 is clearly to the effect that his father, besides being scribe of Ex.P-11, had also attested it. Could he have deposed so? Whether his oral evidence is believable? These questions do arise obviously. But when he was examined for the crucial aspect of proving the handwriting of his father, P.W.3 should have been cross examined on this aspect. No single question, muchless a suggestion at least can be found in the cross-examination of P.W.3 that his father had no intention to attest and his signature is found just as a scribe. So what is the effect of not cross examining a witness on a particular matter in respect of which the witness is called to the court, is clearly stated in two judgments, (1) A.E.G. Carapiet vs. A.Y. Derderian [AIR 1961 Calcutta 359]; and (2) George Dominic Varkey Vs State of Kerala [1971 (3) SC 275] cited by the learned counsel for the respondents. 22. In the case of A.E.G. Carapiet (supra), the principle enunciated is as follows :- “(10) The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination , it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination , it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness of in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff’s account in its entirety.” 23. In the case of Amar Singh v. The State of Bihar, [ 1971 (3) SCC 273 ], the Hon’ble Supreme Court has held as below :- “8. xxxxxxxxxx. There has been a very elaborate cross-examination of P.W.4, on very many points. But on the above crucial aspects, which, in our opinion, are very conclusive against the appellant, there is absolutely no cross-examination . When that was so, the two courts were perfectly justified in acting on the evidence of P.W.4, and finding that the accident happened due to rash and negligent driving of the truck by the appellant.” 24. As it is now clear that P.W.3 has not been cross examined on the crucial aspect for which he was actually examined, his evidence that his father also attested the will besides being a scribe should be believed and accepted. 25. In fact, in the case of N. Kamalam (supra), the Hon’ble Supreme Court does not say that the evidence of Scribe in proof of execution of Will cannot be considered, what is held is that if attestors are available, they have to be examined. If they are not available, the fact of their non-availability has to be satisfactorily proved. 26. In fact, in the case of N. Kamalam (supra), the Hon’ble Supreme Court does not say that the evidence of Scribe in proof of execution of Will cannot be considered, what is held is that if attestors are available, they have to be examined. If they are not available, the fact of their non-availability has to be satisfactorily proved. 26. Having regard to the facts in N. Kamalam’s case, the Hon’ble Supreme Court held that the evidence of one Arunachalam, the scribe of the Will did not replace the requirement of statute as the propounder of the Will had not proved the factum of non-availability of the attestors. In the said decision, the Hon’ble Supreme Court has extracted the observations of Dunkley in the case of P.A. Alagappa Chettyar vs. Ko Kala Pai (AIR 1940 Rangoon 134) : “In this case PO Tauk has given evidence, and he has definitely stated that he wrote this document, that after it had been written it was read over to the executants, that as they were illiterate they held the pen while he put their cross marks on the document and wrote their names opposite their respective cross marks, and that after all this had been done he wrote his name and the description “writer” on the left hand side of the document. In cross-examination he stated that he could not give this evidence in reference to this particular document but that he gave his evidence as part of his invariable practice, his profession in life being the profession of a petition writer. He says that invariably, when he drew up documents which were to be executed by illiterate persons, he adopted this very procedure. The learned District Judge has discarded his evidence upon the ground that his evidence was not really relevant because it was not evidence in regard to the execution of this particular document but evidence in regard to his practice in the writing and executing of documents. The learned District Judge has discarded his evidence upon the ground that his evidence was not really relevant because it was not evidence in regard to the execution of this particular document but evidence in regard to his practice in the writing and executing of documents. But, to my mind, this makes his evidence of more value in this particular case, because it is to the effect that his invariable practice was to sign documents not merely as the writer but by way of testimony of the fact that he had seen the documents executed; and so far as this particular case is concerned, the fact that he cannot, out of the very large number of documents written by him, remember this particular document becomes of no importance in view of the evidence of Mutu Raman who has deposed that he was present when this document was written and executed and when PO Tauk signed it, and he has been able to state that in this particular case PO Tauk wrote the document, read it over to the executants, then caused them to hold the pen while he made their cross marks, and after all this had been done put his signature in the left-hand margin as the writer. Therefore to my mind, it has been established as a fact in this case that PO Tauk signed his name upon this document not merely as the writer but also as testimony that he had actually seen the executants execute the document. That being so, he was an attesting witness within the meaning of the definition in S.3, T.P. Act.” (Emphasis supplied by me) 27. In the case on hand, the plaintiff has made all his best efforts to prove the Will in accordance with Section 69 of the Act, having found the attestors and the scribe dead. It is not as though he has examined the son of the scribe without any reason. Therefore, for this reason also the evidence of P.W.3 is worth acceptance. 28. Then comes the evidence of P.W.4 for the second requirement of section 69 of the Act. He is a Doctor by profession. In his examination-in-chief he stated that Krishnaji used to take treatment from him and thus he got acquaintance with him. He had an occasion to see the signature of Krishnaji, and therefore, he can identify the signature. 28. Then comes the evidence of P.W.4 for the second requirement of section 69 of the Act. He is a Doctor by profession. In his examination-in-chief he stated that Krishnaji used to take treatment from him and thus he got acquaintance with him. He had an occasion to see the signature of Krishnaji, and therefore, he can identify the signature. He has also stated that Krishnaji used to tell him that he had executed a Will in respect of his properties. Having stated so, he identified the signature of Krishnaji on Ex.P-11. It can be seen in his evidence that P.W.4, instead of saying Krishnaji Annaji Bhasme, has given the name as Krishnaji Annaji Ghorpade. But this discrepancy in stating the name incorrectly has not been questioned in the cross-examination . With regard to evidence of P.W.4 about identifying the signature of Krishnaji on Ex.P-11, there is no effective cross-examination at all. He has denied the suggestion that he has not seen the signature of Krishnaji. Therefore, his evidence to the extent of identifying the handwriting of the testator, Krishnaji, is believable. 29. The Trial Court and the First Appellate Court have not discussed the evidence of P.W.3 and P.W.4 elaborately. However, they have believed the evidence of these two witnesses. I am of the opinion because of foregoing discussion that the evidence of P.W.3 and P.W.4 is believable and they are in conformity with section 69 of the Act. 30. At times, a situation may arise that the propounder of the Will finds it difficult to prove the Will either in accordance with Sections 68 and 69 of the Act. He may not be in a position to examine attestors because of their non-availability owing to passage of time, as has happened in this case. The Will, of the year 1963 became subject matter of dispute in the year 1995. So in such a situation, a question arises whether the Courts can draw a presumption under Section 90 of the Act. The learned counsel for the appellant argues that presumption under Section 90 of the Act cannot be drawn because proving the Will is something different from proving other documents and in support of his argument, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Bharpur Singh and others v. Shamsher Singh [ 2009 (3) SCC 687 ]. This argument is not convincing. This argument is not convincing. When the propounder finds it difficult to prove the Will, because of non-availability of the attestors, or because of their death or some other reason, the Court may resort to Section 90 of the Act. But, to take the aid of Section 90 of the Act, the propounder should have first placed convincing evidence before the Court about non-availability of the attestors. He must show that he must have made his best efforts to secure the presence of the attestors and having failed in his attempts, if he is able to show that the Will is free from other suspicious circumstances, the Courts are free to draw presumption under Section 90 of the Act if the requirements of Section 90 of the Act are met with. What is to be stated is that resorting to Section 90 of the Act must be at the last stage and not in the beginning. To fortify this view, I gather the support of judgment of the Division Bench of the Patna High Court in the case of Haradhan Mahatha and others v. Dukhu Mahatha [AIR 1993 Patna 129] : “12. In my view, if the executant or attesting witnesses are not alive or available in relation to a document, the genuineness of which is disputed and mode of proof as required under Section 69 of the Act is also not possible, the Court should raise a presumption under Section 90 of the Act in relation to due execution and attestation of document, if it comes to the conclusion that the document is such that it is likely to have been executed, having regard to the common course of human conduct and there are no circumstances exciting suspicion of the Court such as artificiality and unnaturalness or correction or tampering with document. In the case of Shafiq-un-Nissa v. Shaban Ali Khan, ILR XXVI Allahabad 581, the Privy Council was considering the effect of Section 90 of the Act. Both the conditions were in existence, but genuineness of the document was disputed and the Courts in India refused to mark the document as an exhibit under Section 90 of the Act and called the party for formally proving the document as in their opinion there was evidence in the case which raised great suspicions as to the document itself. Both the conditions were in existence, but genuineness of the document was disputed and the Courts in India refused to mark the document as an exhibit under Section 90 of the Act and called the party for formally proving the document as in their opinion there was evidence in the case which raised great suspicions as to the document itself. When the matter was taken to the Judicial Committee the decision of the Indian Courts was upheld and it was observed thus: "Under these circumstances, their Lordships are not surprised that the Judges, both in the Civil Court and in the Court of the Judicial Commissioner, exercised the discretion which is vested in them by Section 90 by not admitting the document to evidence without formal proof, although it is more than thirty years old, and purports to come from the proper custody. It should be added that the Court considered that there was evidence in the case which it is not necessary to go into, and to which in fact, their Lordships' attention has not been pointedly drawn -- which raised great suspicions as to the document itself." 15. In cases where genuineness of a document is disputed and the executant or attesting witnesses are alive and available, or if they are dead or not available, but evidence is available for proving the document in accordance with the mode prescribed under Section 69 of the Act, then the Court should not raise presumption under Section 90 of the Act and admit the document into evidence, but direct the parties to prove the document by leading evidence.’’ 31. I find it apt to refer to the judgments of the Bombay High Court in the case of Munnalal and Raghunathsingh v. Kashibai [(1947) 49 BOMLR 231] : “8. The will of Bahadur was more than thirty 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 Section 90: they differed on the question whether the presumption extended to the testamentary capacity of the testator. The will of Bahadur was more than thirty 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 Section 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 Section 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 Section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane 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.” 32. Even if it can be stated for arguments sake that evidence of P.W.3 and P.W.4 can be discarded accepting the arguments of the appellants’ counsel, still the execution of the will Ex.P-11 can be presumed by applying section 90 of Act. This Section does not make any distinction between Will and other documents. To raise a presumption under Section 90, the requirements are that a document must be a 30 year old document and it must be produced from a proper custody. This Section does not make any distinction between Will and other documents. To raise a presumption under Section 90, the requirements are that a document must be a 30 year old document and it must be produced from a proper custody. If these two are proved, the Court may draw presumption that the signature and every part of such document is purported to be in the hand writing of any particular person; and in case a document is duly executed or attested, it was duly executed and attested by the persons by whom it purports to be executed and attested. 33. Here, the Will Ex.P-11 was executed on 28.12.1963. Suit was filed in the year 1995. Therefore it is a 30 year old document. There is a clear finding of the courts below that the Will was produced from proper custody. Added to this, a sale deed was also executed by Krishnaji Bhasme on 28.12.1963. On the same day, Will was executed and both documents were registered. The defendants do not dispute execution and registration of sale deed. Therefore, absolutely, there is no impediment for drawing presumption under Section 90 of the Act about execution of the will by Krishnaji Bhasme and its attestation by the persons named there. These being the circumstances here, it has to be stated very respectfully that judgment of the Supreme Court in the case of Bharpur Singh (supra), may be applicable to the facts and circumstances of that case. 34. The learned counsel for the appellants argued that it is not enough if the execution of the Will is proved; the Court should also examine whether the Will is free from suspicious circumstances. Elaborating his argument on this point, he highlighted the very fact of exclusion of Jayavant from natural succession gives rise to doubt the Will. Jayavant was the son of Krishnaji and the same is very clearly evidenced by Ex.P-39 and Ex.D-5. Whatever the plaintiffs have stated that Krishnaji lent his name for getting school admission to Jayavant, cannot be believed. If that is so, in Ex.P-39 the sale deed, there was no occasion for showing Jayavant as son of Krishnaji. He argued that Krishnaji and Rukminibai lived together. A presumption arises that they lived like husband and wife, and therefore, Jayavant was the son born to them. The law rules out basterdity and presumes legitimacy. If that is so, in Ex.P-39 the sale deed, there was no occasion for showing Jayavant as son of Krishnaji. He argued that Krishnaji and Rukminibai lived together. A presumption arises that they lived like husband and wife, and therefore, Jayavant was the son born to them. The law rules out basterdity and presumes legitimacy. In support of this argument he referred to the judgments, namely, Badri Pasad v. Deputy Director of Consolidation ( AIR 1978 SC 1557 ), Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni ( AIR 1998 KAR 364 ), Tulasa v. Durghatiya ( AIR 2008 SC 1193 ) and Reema Aggarwal v. Anupama and others, (2004 (3) SC 199). 35. It is his further argument that the stand that the plaintiffs have taken that Jayavant is not the son of Krishnaji cannot be accepted, as such kind of evidence, contrary to recitals of Ex.P-39 and Ex.D-5, is not permitted in view of Sections 91 and 92 of the Act. In support of this argument, he placed reliance on the decisions, namely, Biswanath Prasad and others v. Dwarka Prasad and others [ 1974 (1) SCC 78 ]; Gangabai v. Chhabubai [ 1982 (1) SCC 4 ]; Roop Kumar v. Mohan Thedani [ILR 2004 Kar 713]; and Damu Ganu Bendale v. Aravind Dhondu Talekar and others [ AIR 1994 SC 1303 ]. 36. Repelling this argument, the learned counsel for the respondents argued that both the Courts below have given a finding on facts that the Will is free from suspicious circumstances and that Jayavant was not the son of Krishnaji. In second appeal the High Court cannot interfere with finding on facts. He further argued that in Ex.P-39 and D-5, name of Krishnaji is mentioned as father of Jayavant only for the sake of convenience. When Jayavant was to be admitted to school, Krishnaji lent his name. Then his name was mentioned in the sale deed for the sake of convenience. He argued that if really Jayavant was the son of Krishnaji, in the Will as per Ex.P-11, Krishnaji would have mentioned that he had a son by name Krishnaji and would have given the reason for not bequeathing anything to him under the Will. So this circumstance can be taken into consideration to arrive at a conclusion that Jayavant was not the son of Krishnaji. So this circumstance can be taken into consideration to arrive at a conclusion that Jayavant was not the son of Krishnaji. In support of his argument that the High Court cannot interfere with the finding of facts in the second appeal, learned counsel placed reliance upon the judgments of the Hon’ble Supreme Court : 1. Veerayee Ammal v. Seeni Ammal [( 2002 SCC 134 )]; 2. Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor [( 1999 (2) SCC 471 )]; 3. Pakeerappa Rai v. Seethamma Hengsu Dead by L.Rs. and Others [ 2001 (9) SCC 521 ]; 4. Thimmaiah and Others v. Ningamma and Another [ (2000)7 SCC 409 ]; 5. Roop Singh (dead) Through L.Rs. v. Ram singh (dead) Through L.Rs. [ 2000 (3) SCC 708 ]; 6. S.V.R. Mudaliar (dead) by LRs. [ (1995) 4 SCC 15 ]; & 7. Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and others [AIR (38) 1951 SC 120]. 37. The learned counsel for the appellants, replying to the argument of the respondents’ counsel that the High Court cannot interfere with finding of facts in the second appeal, submitted that if evidence is perversely appreciated, it amounts to substantial question of law and he referred to the judgements reported in the cases of Hero Vinoth (minor) v. Seshammal ( AIR 2006 SC 2234 ); Rajasthan State TPT Corporation and Another v. Bajrang Lal [ (2014) 4 SCC 693 ]; D.R. Rathna Murthy v. Ramappa [ (2011) 1 SCC 158 ]; Smt. Parvathamma v. Shivakumar @ Shivanna and Siddamma [ 2014 (2) KCCR 1145 ]; and S. Jagadish v. Dr. S. Kumaraswamy since dead by LR’s S.K. Lingaraju and others [ILR 2008 Kar 87]; 38. With regard to the argument that the High Court cannot interfere with the findings of facts in the second appeal, law is well settled that if the finding of facts by the trial Court as well as the First Appellate Court is as a result of proper appreciation of evidence, there cannot be any interference. However, if the Courts below have acted in perversity and the facts and evidence are not appreciated in a proper manner, it can be examined in the second appeal as it gives rise to a substantial question of law. However, if the Courts below have acted in perversity and the facts and evidence are not appreciated in a proper manner, it can be examined in the second appeal as it gives rise to a substantial question of law. In this case, though I do not find that the Courts below have acted in perversity in appreciating the facts with regard to the relationship of Jayavant with Krishnaji and giving a finding with regard to a Will being free from suspicious circumstances, yet I propose to examine this issue as according to the appellants, who argued very vehemently on this point, the Courts below have not appreciated the evidence. 39. Firstly, with regard to the relationship, it is true that in Ex.P-39, the sale deed, the second seller’s name is mentioned as Jayavant Krishnaji Bhasme; the second name Krishnaji refers to the name of the father. In Ex.D-5, the transfer certificate of Jayavant, the father’s name is mentioned as Krishnaji Bhasme. As has been argued by the learned counsel, a long cohabitation of a man and a woman may give rise to a presumption that they lived like husband and wife. But, in this case, the plaintiff’s case is that after the death of Krishnaji’s wife, a woman by name Rukminibai entered his house as a maid servant. So, according to the plaintiff, Rukminibai was a maid servant. 40. The defendants have produced photographs as per Exs.D-1 to D-4, probably to show that Rukminibai was not just a maid servant, she lived like wife of Krishnaji. P.W.3, the witness examined by the plaintiff has refuted the suggestion that Rukminibai was the wife of Krishnaji. The plaintiffs have also stated that Krishnaji belonged to namadev shimpi caste and that Rukminibai belonged to maratha caste. Probably this plea might have been taken to show that there could not have been a marital relationship between the two. Whatever may be the caste, but it is possible in the circumstances that Rukminibai and Krishnaji lived together, a presumption can be drawn that they lived like husband and wife. But, however, this presumption does not lead to further presumption that Jayavant was the son of Krishnaji and Rukminibai, for it is the clear case of the plaintiff that by the time Rukminibai entered the house of Krishnaji, she had already a son through her husband. But, however, this presumption does not lead to further presumption that Jayavant was the son of Krishnaji and Rukminibai, for it is the clear case of the plaintiff that by the time Rukminibai entered the house of Krishnaji, she had already a son through her husband. Just because in Ex.P-39 and D-5, the name of Jayavant is shown as Krishnaji, such a mention cannot lead to any further presumption. The provisions of Sections 91 and 92 of the Act cannot be applied here. The scope of Section 91 of the Act is very clear, it excludes evidence in disproof of terms of contract, grant or other disposition of property when those terms have been reduced to the form of a document. Indeed Ex.P-9 is a sale deed. But the description of the parties given in a sale deed, to be more clear, mentioning the name of Jayavant as Krishnaji in Ex.P-39 cannot be called terms of contract. Names of parties are found in the preamble of the document. Therefore, plaintiffs can give evidence to show as to for what purpose Jayavant’s name was mentioned. 41. Similarly with regard to EX.D-5 it has to be stated that it is not a document which can be brought within the scope of Section 91 of the Act, it is just a transfer certificate issued by the school. Rather the plaintiffs’ case appears to be more probable to be accepted, because of the statement made by Krishnaji himself while giving evidence on oath in O.S. No.261/1966, a suit instituted by the members of his brother’s family. In this suit, Krishnaji was examined as a witness. Ex.P-22 is the certified copy of the judgment in R.A. No. 260/1970, an appeal that was filed challenging the judgment in O.S. No. 261/1966. The learned Judge, who decided this appeal makes reference to one statement of Krishnaji in his judgment. The said reference is, “This Krishnaji, P.W.2 has also stated in his evidence that he has no issues and that he has made a gift of his properties”, so this evidence of Krishnaji has relevance under Section 32(5) of the Act as it was made by Krishnaji at a time when there were no disputes concerning his property. It can be said that if Krishnaji had issues, he would not have given such a statement on oath in a Court of law. 42. It can be said that if Krishnaji had issues, he would not have given such a statement on oath in a Court of law. 42. Even if Ex.P-11, the disputed Will is perused, the inference that can be drawn is that Krishnaji would have definitely mentioned the name of Jayavant in the Will and would have given reasons for excluding him from the Will if really Jayavant was the son of Krishnaji. Rather what is written in the Will is that Krishnaji treated Master Shankar (plaintiff) as his natural born son since his childhood and that except Master Shankar, he has no other loving blood relation. The words ‘blood relation’ are very important here. If really Jayavant was his son, Krishnaji would not have mentioned like this in a Will. So, for these reasons, it is highly impossible to believe that Krishnaji was the father of Jayavant and circumstances are as such that presumption as regards paternity cannot be applied here. Therefore, it has to be concluded that Jayavant was not the son of Krishnaji and the findings of both the Courts below to this effect are to be upheld. 43. There is another circumstance also. To show that Jayavant was living in the out house portion of the bungalow and that he was looking after the agricultural operations, the plaintiffs have produced series of letters which are together marked as Ex.P-15. Actually these letters were written by Nalini, daughter of Jayavant, and addressed to the plaintiffs. All these letters do indicate that Nalini requested the plaintiffs for sending money for carrying on agricultural operations. If Jayavant was the son of Krishnaji, Nalini would not have written letters to plaintiffs seeking financial assistance. These letters have relevance to accept the plea of plaintiffs that Jayavant was not the son of Krishnaji. 44. The discussion in the above paragraphs are clearly to the effect that Jayavant was not the son of Krishnaji. Even if it is assumed for arguments sake that the Jayavant was his son, it was Jayavant who should have questioned the Will. The defendants are the children of Jayavant. When Jayavant did not question the Will, defendants have no locus to question the Will in the facts and circumstances of the case. Therefore, this ground of argument cannot be accepted. 45. The defendants are the children of Jayavant. When Jayavant did not question the Will, defendants have no locus to question the Will in the facts and circumstances of the case. Therefore, this ground of argument cannot be accepted. 45. The learned counsel for the appellants argued another point that the Will came into existence on 28.12.1963 and that the plaintiff did not take any action to get his name entered in the revenue records on the basis of the Will after the death of Krishnaji. Therefore, this is another circumstance to doubt the genuineness of the Will. With regard to this argument it has to be stated that mere not taking of any action by the plaintiff to get his name entered in the revenue record does not lead to doubt the Will. According to plaintiff, Krishnaji died in the year 1979. Even according to the defendants Krishnaji died in the year 1979, but they have also stated that Krishnaji died in the year 1994 and in proof of this they have produced the death extract by way of additional evidence which was received by this Court. It is to be stated that the defendants filed a suit O.S. No.209/1994 against the plaintiff and in the plaint filed in that suit, the defendants themselves clearly stated that Krishnaji Annaji Bhasme died in the year 1979. But, when they made a report to the Revenue Authority to get their names entered in the revenue records after death of their father Jayavant, they stated that Krishnaji died in the year 1994. If it can be considered that Krishnaji died in the year 1979, just because the plaintiff did not make attempt to get his name entered in the revenue record on the basis of the Will, it cannot be treated as a ground to suspect the Will, because what is important is not his inaction to obtain mutation in his name, but whether he took any action soon after coming to know the defendants’ attempt to get their name entered in the revenue records. In this case, the plaintiff has produced documents as per Exs.P-28 and 29 to show that as soon as he came to know of an attempt made by defendants for obtaining mutation entry by giving a report or wardi, he preferred an appeal before the Assistant Commissioner, who allowed the plaintiff’s appeal by cancelling the mutation entry accepted in the name of defendants. Ex.P-9 shows that the plaintiff also petitioned to the Tahsildar to take action against defendants under Section 195 of Cr.P.C. The order of Assistant Commissioner as per Ex.P-28 has not been questioned further by the defendants. 46. As contended by the defendants, if the death of Krishnaji took place in the year 1994, the case of the defendants becomes further worse because the Will as per Ex.P-11 did not come into force till death of Krishnaji, and therefore, the plaintiff could not have taken any action to obtain mutation in his name. So, for these reasons, this point of argument has to be rejected. 47. The next point to be examined is as to the mental status of Krishnaji on the day when he executed the Will. D.W.1 in the cross-examination has clearly admitted a suggestion that the physical and mental status of Krishnaji was good and that Krishnaji used to sign in English. So, this answer of D.W.1 is sufficient to reject the argument of the appellants’ counsel that Courts below have not given a finding with regard to testator’s sound state of mind. 48. Besides the above, another important aspect to be mentioned here is that on 28.12.1963, i.e., on the day when Will was executed, Krishnaji also executed a sale deed in favour of plaintiff in respect of other half portion of the land in Sy. No.646 excluding 20 guntas of land comprised in the Will. It is very interesting to mention here that the defendants do not challenge this sale deed. To this sale deed, Jayavant was not a party; it was executed by Krishnaji only. If Jayavant was really son of Krishnaji, and that Krishnaji alone had no right to execute the sale deed, Jayavant should have challenged the sale deed, but he did not. Even the defendants do not contend that the said sale deed is bad because Jayavant was not a party to sale deed. If Jayavant was really son of Krishnaji, and that Krishnaji alone had no right to execute the sale deed, Jayavant should have challenged the sale deed, but he did not. Even the defendants do not contend that the said sale deed is bad because Jayavant was not a party to sale deed. Therefore, this is also one of the grounds to state that acceptance of sale deed by the defendants estoppes them from doubting the genuineness of the Will. Moreover, Krishnaji never thought of cancelling the Will. 49. Therefore, it has to be stated now that the Will as per Ex.P-11 appears to be free from all suspicious circumstances, and that the plaintiff became the absolute owner of the property bequeathed to him under the Will and further that the Courts below are justified in granting a decree in favour of the plaintiff. This discussion takes me to conclude that the appeal should fail and accordingly appeal is dismissed with costs.