JUDGMENT Tarun Agarwala, J.
1. Heard counsel for the parties.
2. The plaintiff filed a suit for a permanent injunction restraining the defendant Nos. 1 and 2 from interfering with the plaintiffs possession over the property mentioned in Schedule 'C' to the plaint. It was alleged that the property mentioned in Schedule 'C' was bequeathed to the plaintiff as well as to the defendant No. 3 by their grandfather, Sri Balwant Singh, on the basis of a Will dated 6.8.1946. It was also alleged, that, from the income from these properties, the father of the plaintiff, i.e., defendant No. 2 had purchased other properties, which are mentioned in Schedule 'B' to the plaint. It was alleged that these properties were illegally purchased by the defendant No. 2 in his own name, whereas, it should have been purchased in the name of the plaintiff and defendant No. 3. It was also alleged that the father of the defendant No. 2 entered into an agreement to sell on the basis of which, the defendant No. 2 was required to execute a sale deed in favour of the plaintiff and defendant No. 3, but instead of executing a sale deed in their favour, the defendant No. 2 executed a registered sale deed dated 26.10.1959, selling the property mentioned in Schedule 'C to the defendant No. 1. The plaintiff contended that the defendant No, 2 had no right or title to execute the sale deed in favour of the defendant No. 1. It may be stated here that the properties mentioned in Schedule 'C' includes the properties mentioned In Schedule 'A' and 'B' Hence the suit for permanent injunction was filed.
3. The defendant No. 1 contested the suit and contended that he was a bona fide purchaser for value and that the Will set up by the plaintiff was a forged and a fictitious document. The defendant No. 1, contended, that pursuant to the registered sale deed dated 26.10.1959, the defendant No. 2 became his tenant and that he was paying the rent. The defendant No. 2 fell in arrears of rent and accordingly the defendant No. 1 instituted a suit for recovery of rent and for ejectment against defendant No. 2. The Suit No. 120 of 1963 was decreed on 19th November, 1963. It was contended that the suit filed by the plaintiff was filed in order to circumvent the decree passed in Suit No. 120 of 1963. The defendant No. 2 did not appear nor contested the suit.
4. On the basis of the evidence led by the parties, the trial court by its Judgment, dismissed the suit of the plaintiff. The trial court, held that the property mentioned in schedule 'A' was bequeathed by the plaintiffs grandfather in favour of the plaintiff and defendant No. 3 and that the Will was produced from a proper custody and that since the Will was more than 20 years old, therefore, the Will was genuine. The trial court drew the presumption of its genuineness Under Section 90 of the Evidence Act. The trial court, however, held that the property mentioned in Schedule 'B' was purchased by the defendant No. 2 and it was not purchased from the income of the property mentioned in Schedule 'A' and that the defendant No. 2 was the valid owner and had every right to sell the properties mentioned in schedule 'B' to the defendant No. 1.
5. Aggrieved by the decision of the trial court, the plaintiff filed an appeal, which was also dismissed. The trial court affirmed the finding of the properties mentioned in Schedule 'B' and further held that the Will was not proved by the plaintiff as contemplated Under Section 68 of the Evidence Act and that no presumption could be drawn Under Section 90 of the Evidence Act inasmuch as the witnesses to the said Will were alive and that these witnesses had not been produced to prove the execution of the Will. The trial court further held that the Will was not produced from a proper custody inasmuch as, the mother of the plaintiff was not produced to prove the custody of the document.
6. The plaintiff has now filed the second appeal and submitted that the finding of the trial court on the genuineness of the Will could not be reversed by the first appellate court as no cross-objection had been filed by the defendant No, 1. The learned counsel for the appellant further submitted that the presumption drawn Under Section 90 of the Evidence Act, by the trial court, was correct and the finding of the appellate court on this issue was wholly incorrect. It was also contended that the property mentioned in Schedule 'A' was bequeathed by the plaintiff's grandfather in favour of the plaintiff and defendant No. 3 and that the said property could not be sold by his father, defendant No. 2. The learned counsel for the appellant conceded that the findings arrived at by the courts below with regard to the properties mentioned in Schedule "B' was not being challenged in the present appeal.
7. In my view, the findings recorded by the lower appellate court requires no interference by this Court. Section 68 of the Evidence Act contemplates that a document cannot be used as an evidence until one attesting witness is called to prove the execution of the said document. The lower appellate court had found that the witnesses to the Will were alive, and, inspite of being alive, the witnesses had not been produced by the plaintiff. Even though, the document may be 20 years old, but if the witnesses are alive, they have to be produced in order to prove the said document Under Section 68 of the Act. Merely, because the document is alleged to be 20 years old, the presumption Under Section 90 of the Evidence Act cannot be drawn by the Court. Section 90 of the Act is not mandatory. The raising of a presumption of a document is a matter, which is eminently with the discretion of the Court. The rule of presumption must be applied with exceeding caution and where circumstances throw suspicion on the genuineness of the document, no presumption Under Section 90 can be drawn. In the present case, the defendant No. 2 executed a registered sale deed in the year 1959 in favour of the defendant No. 1. The defendant No. 2 failed to pay the arrears of rent and the defendant No. 1 filed a suit for eviction in the year 1963, which was decreed on 19.11.1963. In order to circumvent the decree in Suit No. 120 of 1963 and In order to defeat the sale deed of 1959, a new case has been set up on behalf of plaintiff claiming himself to be the owner of the property on the basis of a Will. The circumstances, clearly shows the suspicious circumstances surrounding the execution of the Will and the genuineness of the Will could not, in the given circumstances, be proved on mere presumption that the Will is 20 years old. I further hold that the Will had not been produced from a proper custody. It has been alleged that the plaintiffs grandfather had given the Will to the plaintiffs mother and therefore, submitted that the Will was kept in a proper custody. In the present case, the mother of the plaintiff was alive and she has not been called in the witness box to prove its proper custody. Merely on the statement of the appellant, that the Will was kept in a proper custody does not prove that the Will was produced from a proper custody. The plaintiff should have produced the witness to prove proper custody of the Will. Since the mother of the plaintiff was not produced, the proper custody of the document has not been proved by the plaintiff. Therefore, no presumption can be drawn Under Section 90 of the Evidence Act.
8. The learned counsel for the appellant submitted that the trial court had given a categorical finding that the Will is genuine and had been validly executed and in the absence of any cross-objection, the appellate court could not consider nor could give any finding on the genuineness of the Will. In support of his submission, the learned counsel has relied upon the decision of the Supreme Court in AIR 1976 SC 1395 and AIR 1977 SC 890. The learned counsel has also placed reliance in AIR 1966 All 570 and AIR 1973 Punj 477. In my view, the judgments relied upon has no application to the aforesaid proposition. Under Order XLI Rule 22, C.P.C. the defendant can challenge an adverse finding while supporting the decree even though the defendant had not filed any cross-objection. In Balkrishna Das v. Radha Devi, AIR 1989 All 133, a Division Bench of this Court held :
"Keeping these principles in mind, we find that the plaintiffs here had not suffered in any way on account of the judgment since their suit had been decreed, finding on the point of due execution of the Will notwithstanding. If the plaintiffs were not aggrieved by the judgment, they could hardly have a cause to file an appeal and for that matter even to file a cross-objection. That being so, the plaintiffs are entitled to support the decree even on those points that have been decided by the judgment under appeal against them. In our view, therefore, the respondent is entitled to challenge the finding on the question of due execution of the Will even though a cross-objection that in regard has not been filed. We, therefore, overrule the preliminary objection by the appellant."
9. Thus, the aforesaid submission of the learned counsel has no merit and is rejected.
10. In view of the aforesaid, no substantial questions of law arises for consideration in the second appeal. The second appeal is devoid of any merit and is dismissed with cost.