Long delay in enforcing rights-adverse inference should be drawn against plaintiff
As the will purports to have been executed in 1879, however, and the defendants have not been called upon to prove it until the present suit was filed on 1st May 1923, nearly 44 years later, it has happened, not unnaturally, that all these witnesses have died. It has been urged very strongly on behalf of the defendants that the delay of the plaintiffs in bringing the suit has prejudiced the defendants and has prevented them from bringing the best evidence that would have been available, for instance, in 1903 and the following years, and this is an argument to which constant reference has been made whenever the evidence of the defendants has been criticised.The learned Sub-Judge at an early stage in his judgment referred to the remarks of their Lordships of the Privy Council in the case of Rajendro Nath Holdar v. Jogendro Nath Banerjee [1870] 14 M.I.A. 67. In that case the will had been acted upon and recognized for 27 years by the whole of the family of the testator, and their Lordships remarked:
If the document had been a fabrication, and if there were persons who might have intervened and have contested the will, the presumptive heir, who was in existence before his title was defeated by the birth of the present contesting respondent, might have come forward in one way or another and contested the will. Therefore, there arises from all these circumstances a very strong presumption, which their Lordships do not feel themselves at liberty to disregard, in favour of the will
