Kalidindi Venkata Subbaraju & Ors
Vs. Chintalapati Subbaraju & Ors [1967] INSC 265 (21 November 1967)
21/11/1967 SHELAT, J.M.
SHELAT, J.M.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1968 AIR 947 1968 SCR (2) 292
CITATOR INFO :
R 1983 SC 684 (141)
ACT:
Indian Evidence Act (1 of 1872), ss. 32(5)
and (6), 65 and 90-Statement as to age in will--If relevant--Scope of the words
'Before the question in issue was raised'-Copy of will admitted as secondary
evidence--Due execution of original will proved--If contents of copy could be
relied on--Presumption under s. 90--If could be drawn with respect to copy.
Will-On whom burden of proving due execution
lies- Discrepancy between body and schedule-Effect of.
Birth register-Original not produced
Endorsement relating to absence of entries-Writer of endorsement not
examined-If endorsement admissible in evidence.
HEADNOTE:
A Hindu died bequeathing all his properties
to his mother absolutely by a will executed three days before his death. In the
will he stated his age to he 19 years, and that he was thereby disposing of his
entire properly, movable and immovable, in favour of his mother. After his
death, the nearest reversioner under the law as it then stood, filed a suit for
a declaration that the will was not valid because it was executed by the
testator when he was a minor and when he was not in a sound disposing state of
mind. The mother of the testator (legatee) contened the suit and asserted in
her written statement that when he executed the will the testator was a major
and was in a sound disposing state of mind. The suit was compromised By the
compromise, the reversioner admitted that testator when he executed the will
was a major and was in a sound disposing state of mind, that the will was valid
and genuine, and the testalor's properties were divided between the reversioner
and the legatee There was a decree in terms of the compromise. Thereafter, the
reversioner and the legatee conducted themselves as the absolute owners of
their respective shares of the property. The legatee executed settlement deeds
in favour of her daughters with respect to part of the land received by her
under the decree. The daughters took passion of the properties accepting their
mother as their absolute owner. After the death of the legatee, the appellants.
who were the sons of those daughters obtained a deed of surrender from their
mothers accepting the legatee as the absolute owner of the properties. They
then filed a suit against the respondents.
who were the descendants of the reversioner who
filed the first suit contending that the compromise decree in the first suit
was collusive. that the testator was not a major nor of sound disposing state
of mind when he executed the will, that the will did not. cover all the
properties of the testator and that the appellants were in any event entitled
to those properties with respect to which there was an intestacy. as the
sisters sons of the last male holder under the Hindu Law of Inheritance
(Amendment) Act of 1929. The respondents contested the suit and case notice to
the appellants to produce the original will alleging that it was in the possession
of the appellants, but the appellants denied the allegation, and the
respondents, thereupon, relied upon a certified copy of the wilt produced from
the records of the court filed in the first suit.
The trial court dismissed the suit and the
High Court confirmed the dismissal in appeal.
In appeal to this Court, it was contended
inter alia:
(1) that the burden of proof that the will
was validly executed by the testator and that he was a major at the time of
executing it was upon the respondents ,red that they failed to discharge that
burden; and (2) that there was an intestacy with respect to a portion of the
land and that the appellants were entitled to it.
HELD:(1) (a) As the lower Courts held that
the appellants deliberately withheld the original will, its certified copy
could be admitted as secondary evidence of its contents under 8. 65 of the
Evidence Act, 1872. But the High Court was not justified in presuming under s.
90 of the Evidence Act, that the will itself was duly executed and attested.
merely because the copy was more than thirty years old and was produced from
proper custody. Such a presumption arises only in respect of the original document
and not with respect to a copy. [297 H; 298 A, C. D, F] Harihar Prasad v. Must.
of Mttnshi Nath Prasad, [1956] S.C.R.1. followed.
Munnalal v. Krishobai, A.I.R. 1947 P.C. 15
and Basant Singh v. Bnj Pad, 62 I.A. 180, referred to.
But, apart from the presumption. on the oral
evidence adduced and from the conduct of the legatee, the High Court was
justified, in concluding that the testator executed the will and was at that
time in a sound disposing state of mind and in construing the contents of the will
as disclosed by the certified copy and holding that it was natural and
rational. [298 G; 299 C, F--G] Setthava v. Somayajulu, 56 I.A. 146, applied.
(b) The respondents who relied on the will
had discharged the onus which lay on them, namely, of proving that the testator
was a major at the time he executed the will. [299 G--H] The statement of the
mother of the testator in the written statement of the earlier suit that the
testator was a major was not relevant either under s. 32(5) or 32(6) of the Evidence
Act, because, it was made post litm motam.
The words in the sub-,section, namely,
'before The question in issue was raised' do not mean before it was raised in
the particular litigation in which such a statement is sought to be adduced in
evidence. They mean before the existence of any actual controversy. When the
legatee flied her written statement in the first suit a dispute had arisen as
to the age of the testator, and the controversy having existed time when the
statement was made; the statement was inadmissible. 1303 B--D, F--H] Bahadur
Singh v, Mohan Singh, 29 I.A. 1 and Kalka Prasad v. Mathura Prasad, 35 I.A.
166, referred to.
But, the statement of the testator in the
will that he was a major at the time he was executing it was relevant under the
sub-sections because.
294 the question of age fails within the
sub-sections as it indicates the commencement of relationship. [303 A] Md.
Syedol Arffin v. Yeohooi Gark, 43 I.A. 256, Rama Chandra Dutt v. Yogeshwar
Narain Dec, I.L.R. 20 Cal. 758, Oriental Govt. Security Life Assurance Co. Ltd.
v. Narisimha Chari, I.L.R. 25 Mad. 183, Gulab Tharkur v. Fadali (1922) 68 I.C.
566, Prolhad Chandra v. Ramsaran, A.I.R. 1924 Cal. 420, and Mst. Naima Khatun
v. Basant Singh, A.I.R. 1934 All. 406 referred.
Further the conduct of the appellants and
their mothers was consistent only with the fact that it was understood amongst
the members of the family that the testator was a major at the time of the
execution of the will and that the will was validly made. [303 H; 304 A--D] The
documents relied upon by the appellants, namely, a memorandum and an
endorsement received from the Taluk Office showing that there were no entires
relating to the birth of any children in the testators family in the birth
register for the year in which the testator stated he was born, were not
admissible in evidence as the writers of the documents were not examined to
testify to the contents of those documents and to establish that
notwithstanding their diligent efforts the original register was not traceable.
[301 B--D] (2) In face of the expressly
declared intention in the body of the will that he was disposing of the entire
property it is impossible to hold that the testator desired to hold back a
portion thereof from his mother and leave it intestate. merely became, there
was discrepancy between the total measurement mentioned in the body of the will
and that in the schedule to the will. [304 H; 305 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 129 of 1965.
Appeal by special leave from the judgment and
decree dated August 24, 1962 of the Andhra Pradesh High Court in Appeal No. 419
of 1958.
S.T. Desai, M.S.K. Sastri and M.S.
Narasimhan, for the appellants.
H.R.Gokhale and R. Ganapathy lyer, for
respondents Nos. to4.
The Judgment of the Court was delivered by
Shelat, J.This appeal by special leave is directed against the judgment and
decree of the High Court of Andhra Pradesh confirming the dismissal by the
trial Court of the suit filed by appellants 1 and 2.
The pedigree set out below clarifies the
relationship between the parties :-- 295 Chintalapati Venkatapatiraju
------------------------------------------------ Somaraj Sitharamaraju
(Plaintiff in O.S. 21/23) Pullamraju (died 19-12-1913)widow Surayamma (died
22-10-50) Daughter Subbay- Venkay-Somaraju Son (said Radhyamma died in yamma
yamma died to have been (died 6-4-27) infancy) (died) (died 29-3-21) born and
died' 11-8-56) in infancy).
Kalidindi Venkata Kali- Pinnamaraju
Subbaraju(1st dindi Gopala Prabhakara Plaintiff) Raju (2nd Lakshmipatiraju
Plaintiff) 6th Defendant) Venkatapati Venkayamma Rajayamma Suryamma Raju
Subbaraju- (1 st Defendant) Rangamma Sitaramaraju Venkatapatiraju
Vijayasubbaraju (2nd Defendant) (3rd Defendant) (4th Defendant) Pullamraju died
leaving him surviving his undivided Somaraju, his widow Surayamma and three
daughters. Somaraju died on March 29, 1921 whereupon the said Surayamma claimed
that he had left a will dated March 26, 1921 whereunder all the properties had
been bequeathed to her absolutely.
Sitaramaraju the uncle of Pullamraju filed
Suit No. 21 of 1923 for a declaration that Somaraju's will was not valid as he
had executed it when he was a minor and was not in a sound disposing state of
mind.
296 Surayamma in her written statement filed
in that Suit contended that Somaraju was a major having been born on January 7.
1903 and was in a sound disposing state of mind when he executed the said will.
The suit ended in a compromise decree by which Sitartmaraju admitted that
Somaraju was a major when he died, that he was in a sound disposing state of
mind and that the will therefore was genuine and valid. Under the compromise
decree he received 26 out of about 57 acres of land and the rest of the
property was retained by Surayamma. Thereafter Surayamma conducted herself as
the absolute owner of the properties which came to her under the said decree.
By two deeds, dated March 30, 1925 she settled part of the land received by her
under the said decree in favour of her two daughters the mothers of plaintiffs
1 and 2 and defendant 6 respectively. The said properties have since been
possessed of and enjoyed first by the said two daughters and later by
plaintiffs 1 and 2 and defendant 6. On November 3. 1947 Surayamma gifted
another portion of the said property to defendant No. 6. Surayamma died on
October 22, 1950.
Plaintiffs and 2 and defendant 6 (the present
appellants) thereafter obtained a deed of surrender from their mothers and
filed the suit out of which this appeal arises, contending that they were the
nearest reversioners of Somaraju, being the sons of his sisters; that the said
compromise decree was collusive. that the said Somaraju did not execute the
said will that even if he did he was not a major nor of sound disposing state
of mind when he executed it and that therefore the said will was not valid. By
a subsequent amendment of the plaint they also contended that some of/he lands
left by Somaraju were not disposed of under the said will that there was
consequently intestacy in respect thereof which in any event they as
reversioners were entitled to claim. The respondents resisted the suit
contending that the said will was valid, that the said compromise decree was
binding on the appellants and that they having accepted and enjoyed the said
properties settled upon their mothers by Surayamma, they were estopped from
challenging the will or the said decree. They also denied that any of the
properties left by Somaraju remained undisposed of by the said will or that
there resulted any intestacy regarding them or that on such intestacy the
appellants became entitled thereto. The trial Court held that Somaraju did
execute the will that the original will was with the appellants and was
suppressed by them, that therefore its certified copy produced from the records
of the court was admissible, that the' said will was valid as Somaraju was a
major and in a sound disposing state of mind when he executed it, that the said
decree was by way of a family arrangement in settlement of bona fide disputes.
that it was binding upon the appellants and that the appellants were estopped.
from disputing the will or the said decree.
The trial Court also repelled the contention
that Somaraju left any property undisposed of under the said will or 297 that
the appellants became entitled thereto upon an intestacy. In appeal against the
said judgment the High Court confirmed the dismissal of the suit by the trial
Court. The High Court also confirmed the trial Court's conclusion that the
certified copy of the said will was admissible as secondary evidence thereof
and that Somaraju was a major and in a sound disposing state of mind when he
executed the said will. The High Court also confirmed the trial Court's
conclusion that the said decree was binding on the appellants and that 'the
appellants and their respective mothers having accepted and enjoyed the
properties settled upon them by Surayamma were estopped from disputing either
the will or the said decree.
Mr. S.T. Desai for the appellants raised the
following contentions :-- (1) that the burden of proof that the will was
validly executed by Somaraju and that he was a major at the time of executing
it was upon the respondents and that they failed to discharge that burden; (2)
that the conclusion of the High Court and the trial Court that he was 19 years
of age at the time he executed the will was not justified; (3) that the High
Court erred in holding that extracts from the birth and death Registers
produced by the appellants were not public documents within the meaning of s.
35 of the Evidence Act and therefore not admissible; (4) that the High Court
erred in holding that even if the will was not proved to have been validly
executed, the said compromise decree was binding on the appellants and estopped
them from challenging the validity of the will or the said decree; (5) that the
appellants did not claim through the said Venkamma but under the Hindu Law of
Inheritance (Amendment) Act 2 of 1929 and therefore there was no question of
the compromise decree being binding on them or their being estopped from
disputing 'the will or the said decree; and (6) that in any event, Somaraju did
not dispose of land admeasuring about A 15.14.
that there was therefore intestacy in regard
to it and the appellants as reversioners ought to have been held entitled to
it.
As aforesaid, the respondents did not produce
the original will but produced only its certified copy, Ex. B.
9; which they obtained from the record of
Suit No. 21 of 1923 wherein Surayamma had filed the original will along with
her written statement. The respondents, however, had given notice to the
appellants to produce the original will alleging that it was in their
possession but the appellants denied the allegation and failed to produce the
will. Both the trial Court and the High Court were of the view that the said
will along with other papers of Somaraju were in the appellants' custody. that
they had deliberately withheld it as it was in their interest not to produce
it. The trial Court therefore was 298 in these circumstances justified in admitting
the certified copy of the will as secondary evidence of the contents of the
will. Since the will was executed in 1921 and the testator had died soon after
its execution it was not possible to produce either its writer or the witnesses
who attested it. It was undisputed that its scribe and the attesting witnesses
were all dead except Dalapati Venkatapathi Raju, D.W. 4. But the appellants'
contention as regards D.W.4 was that he was not the same person who attested
the will. The High Court appears to have relied upon s. 90 of the Evidence Act
and to have drawn the presumption that the will being more than 30 years old it
was duly executed and attested by the persons by whom it purported to have been
executed and attested. Such a presumption, however, under that section arises
in respect of an original document. (See Munnalal v. Krishibai)(1).
Where a certified copy of a document is
produced the correct position is as stated in Bassant Singh v. Brij Rai(2)
where the Privy Council laid down that if the document produced is a copy
admitted under s. 65 as secondary evidence and it is produced from proper
custody and is over 30 years old only the signatures authenticating the copy
can be presumed to be genuine. The production of a copy therefore does not warrant
the presumption of due execution of the original document. The Privy Council
repelled the argument that where a copy of a will has been admitted the Court
is entitled to presume the genuineness of such will which purports to be 30
years old. Relying on the words "where any document purporting or proved
to be 30 years old" in s.
90, the Privy Council held that the
production which entitles the Court to draw the presumption as to execution and
attestation is of the original and not its copy and that the decisions of the
High Courts of Calcutta and Allahabad on which the argument was based were not
correctly decided.
This view has since then been approved of by
this Court in Harihar Prasad v. Must. of Munshi Nath Prasad(3). The High Court
therefore was not entitled to presume from the production of the copy either
the execution or the attestation of the said will.
But, apart from such presumption there was
evidence from which the High Court could conclude that 'the will was duly
executed by Somaraju and attested by the witnesses who appear to have affixed
their signatures thereto. There was, firstly, the fact of Surayamma having
produced the will soon after its execution in Suit No. 21 of 1923. Secondly,
there was evidence of her having based her claim to Somaraju's property in the
said suit by virtue of and under 'the said will. Thirdly, there was the
evidence of conduct of Surayamma in' dealing with the property as an absolute
owner basing her claim under the said wilt. Fourthly.
(1) A.I.R. 1947 P.C. 15.
(2) 62 I.A. 180.
(3) [1956] S.C.R. 1, 19.
299 there were the three settlement deeds
executed by her in favour of her daughters and lastly the fact of the terms of
the said will being natural and rational, consistent with Somaraju's anxiety
that in the absence of any male heir to him the properties should go to his
mother to enable her 'to make due provision for his three sisters instead of
dying intestate and the properties thereon going to the said Sitaramaraju and
his heirs under the law as it then stood.
There was next the evidence of D.W. 4
testifying to the execution of the wilt by Somaraju and to his having attested
the original will along with other witnesses. His evidence also was that
Somaraju was then in a sound disposing state of mind. Both the trial Court and
the High Court accepted the evidence of D.W. 4 as of the person who along with
others had attested the will. There was thus ample evidence from which the High
Court could conclude and in our view rightly that Somaraju executed the said
will and was at the time in a sound disposing state of mind. The effect of the
certified copy of the will having been thus rightly admitted was as if the
contents of the will were before the Court and the Court could proceed to
construe those contents. We are supported in this conclusion by authority. In
Setthaya v. Somayalulu(1) the original grant which was 250 years old was lost
but a copy of it was produced from the respondents' custody. It bore the
following endorsement of the predecessors of the respondents: 'Originals have
been retained by us and copies have been filed, 1858'. The Privy Council held
that the copy was properly admitted under s. 65 and 90 of the Evidence Act as
secondary evidence of the terms of the grant and that the statement and the
said endorsement authenticating the copy were evidence as a statement by a
deceased person in a document relating to a relevant fact and also as an
admission of the respondents' predecessors. The Privy Council also held that
the copy being admissible as secondary evidence of the terms of the original
grant the Court could proceed upon the footing that the terms of the said grant
were before it and could therefore consider them. The High Court was therefore
quite competent in construing the contents of the said will and in holding that
the terms of the said will were 'natural and rational and proved that Somaraju
was fin a sound disposing state of mind.
The question, however, still remains whether
Somaraju was a major at that time. The onus of proof that he was then a major
and could competently execute it was on the respondents who relied on the will
(See Ganaprakasam v. Paraskthy)(2). The appellants' case was that Somaraju was
born in 1905 and not in 1903 as alleged by the respondents.
The admitted position was that all the
children of Pullamraju were born in the village Isukapalli. The parties in
support of their rival contentions produced (1) 56 1.A,146.
(2) A.I.R. 1941 Mad. 179.
300 both oral and documentary evidence. Apart
from the certified copy of the will and Suryamma's written statement in Suit
No. 21 of 1923, 4 other documents Exs. A4, A5, A9 and B24 were filed in the
trial Court. B24 produced by the respondents was an extract from the 'birth
register of Isukapalli. Exs. A4 and A5 produced by the appellants were
respectively an extract from the birth register of Isukapalli and an extract
from the death register relating to Somaraju's death. Ex. A9 also produced by
the appellants was a reply to them from the department concerned that there was
no entry in regard to Somaraju's birth in the birth register of 1903 of
Isukapalli. Curiously the registers of births and deaths of is ukapalli village
for 1903 and 1905 were available in 1955 but in 1957 when the trial Court
called for these registers it was informed that those registers could not be
traced. The result was that the only evidence before the Court consisted of
certified copies of extracts, Exs. A4 and A5, from those registers and the said
letter Ex. A9. Ex. B24, it appears, was motheaten overwritten and tampered with
at some places with ink different from the original ink in which the rest of
the document was written. Both the trial Court and the High Court were agreed
that it could not therefore be considered as furnishing evidence of Sornaraju's
date of birth. Ex.
A4 was an extract of birth register for the
year 1905.
The appellants' contention was that this
extract furnished evidence that Somaraju was born in 1905. It was said to have
been obtained by Surayamma in 1941 as she intended to file some suit which she
ultimately did not. Assuming that Ex A. 4 was admissible under s. 35 of the
Evidence Act, it could not assist the appellants as it only indicated at best
that a son was born of Pullamraju in 1905. The case of the respondents. however
was that another son besides Somaraju was born of Pullamraju after Somaraju's
birth. In the absence of any evidence led by the appellants that A.4 related to
Somaraju and no one else, the extract obviously could not establish that
Somaraiu was born in 1905 and therefore was a minor in 1921. Ex.A. 5 showed
that Somaraju died on March 29. 1921 but there was dispute as to the date of
his death. There was no doubt reference in that extract that he died at the age
of 16. But the High Court found that the figure '16' for his age was written in
an ink different from that used for the others entries in the extract and that
that figure was an interpolation made by someone subsequently. Both the trial
Court and the High Court were in fact of the opinion that Exs. A4 and A.5 were
not genuine. The High Court was further of the view that Ex.A.5 had been
tampered with and therefore could not be relied upon. Exhibits B.24, A.4 and
A.5 thus having been found to have been tampered with and therefore unreliable
documents, it is not necessary for us to go, as the High Court did, into the
question whether such extracts were admissible under s. 35 of the Evidence. Act
or not.
301 Besides these extracts, the appellants
also produced Exs. A.8 and A.9 a memo issued by the Taluk office, Kakinada and
an endorsement dated September 17, 1955 issued by the Head Clerk of the Taluk
Office, Pithapuram respectively.
The memo stated that there were no entries in
the birth register of 1903 for Tanuwalla village relating to the birth of any
of the children of Pullamraju. The endorsement stayed that an application for
extract from the birth register for 1903 in respect of the birth of any of the
children of Pullamraju was fried but as there were no such entries in the birth
register for/sukapalli for 1903 the stamps sent by the applicants for the copy
were returned.
Neither the writer of Ex.A.8 nor of A.9 was
examined to testify to the contents of 'the said memo and the said endorsement
and to establish that notwithstanding their diligent efforts the original
registers were not traceable.
Exs. A.8 and A.9 could not be admitted in
evidence without the formal proof of the entries and were rightly held
inadmissible. We need not consider the rest of the documentary evidence viz..
Exs. A. 3 and A.7 produced by the appellants as neither of them was relied upon
before us.
Both the parties, as aforesaid, led
considerable oral evidence. However, except for the evidence of D.W. 4 both the
trial Court as well as the High Court found that the oral evidence of these
witnesses was speculative in character and therefore could not be said to have
established either of the rival contentions as to Somaraju's age. No reason has
been shown that their assessment of this evidence was wrong. This being the
position regarding the evidence led by the parties there remains only three
pieces of evidence requiring consideration, viz., (1 ) the statement of
Somaraju as to his age in the said will; (2) the statement of Surayamma in the
said written statement and (3) the subsequent conduct of Surayamma, the mothers
of the appellants and the appellants themselves.
The question canvassed both before the High
Court and us was whether the statements made by Somaraju and Surayamma in the
said will and in the said written statement respectively were admissible and
could be used to establish that Somaraju was 19 years of age at the time when
he executed the said will. Section 32(5) of the Evidence Act provides that :-
"When the statement relates to the existence of any relationship by blood,
marriage or adoption between persons as to whose relationship by blood,
marriage or adoption the person making the statement had special means of
knowledge" Section 32(6) provides that "When the statement relates to
the existence of any relationship by blood, marriage or adoption between 1
Sup.CI/68 -5 302 persons deceased, and is made in any will or deed relating to
the affairs of the family to which any such deceased person belonged, or in any
family pedigree or upon any tombstone, family portrait or other thing on which
such statements are usually made".
Both the sub-sections require that such a
statement can be admissible only if it was made before the question in dispute
was raised.
It is clear from sub-s. 5 that if construed
literally it is possible to contend that a statement regarding the age of the
person concerned is not one relating to the existence of any relationship by
blood or marriage or adoption. But such a literal construction is not a proper
one as has been ruled in more than one decision. In Oriental Govt. Security
Life Assurance Co. Ltd. v. Narasimha Chari(1). Bhashyam Ayyangar J. Following
Rama Chandra Dutt v. Yogeshwar Narain Deo(2) held that statement as to the age
of a member of a family made by his deceased sister is admissible under s.
32(5), the principle being that the time of one's birth relates to the
commencement of one's relationship by blood and therefore a statement as to his
age made by a person having special knowledge relates to the existence of such
relationship. This observation was approved in Mohammed Syedol Ariffin v.
Yeohooi Gark(3) where the Privy Council held that the question of age in such a
case falls within s.
32(5) as it indicates the commencement of
such relationship.
In Gulab Thakur v. Fadali(4) a statement by a
person made when he was 36 years of age that he was adopted when he was 4 years
old was held admissible after his death prove the fact of his adoption as he
possessed special knowledge about the relationship required by the section. It
was also held that the fact that the person making the adoption died while 'the
adopted was too young to remember him would not be material as the latter would
be able to declare that he had been adopted from that acquaintance with the
history of his family which he would necessarily possess. Similarly, in Mst.
Naima Khatun v. Basant Singh(5) the High Court of Allahabad following the
decision in Ariffin v. Yeohooi Gatk(3) held that a statement as regards age is
tantamount to a statement as to the existence of relationship.
Therefore a statement by an adoptive mother
as regards the age of the adopted boy, although it would not show herown
relationship with him was admissible. In Pralhad Chandra v. Ramsaran(6), the
Calcutta High Court held that a statement in the Guardianship application as to
the date of birth is admissible if the person who had made it is dead and had
special means of knowledge of the relationship.
This being the position (1) I.L.R. 25 Mad.
183. (2) I.L.R. 20 Cal. 758.
(3) 43 I.A. 256 (4) (1922) 68 I.C. 566.
(5) A.I.R. 1934 All. 496. (6) A.I.R. 1924
Cal. 420, 422.
303 under s. 32(5) the statement made by
Somaraju in his will that he was 19 years of age at the time of its execution
was admissible and was rightly relied upon by both the trial Court and the High
Court as establishing that Somaraju was a major and was competent to make the
said will.
As regards the written statement of Surayamma
the position of her declaration therein is somewhat different.
Both sub-ss. 5 and 6 of s. 32, as aforesaid,
declare that in order to be admissible the statement relied on must be made
ante litem motam by persons who are dead, i.e., before the commencement of any
controversy actual or legal upon the same point. The words "before the
question in issue was raised" do not necessarily mean before it was raised
in the particular litigation in which such a statement is sought to be adduced
in evidence. The principle on which this restriction is based is succinctly
stated in Halsbury's Laws of England, 3rd Ed. Vol. 15, p. 308 in these words:
"To obviate bias the declarations are
required to have been made ante litem motam which means not merely before the
commencement of legal proceedings but before even the existence of any actual
controversy concerning the subject matter of the declarations".
In Kalka Prasad v. Mathura Prasad(1) a
dispute arose in 1896 on the death of one Parbati. In 1898 in a suit brought by
one Sheo Sahai a pedigree was filed. After this, the suit from which the appeal
went up to the Privy Council was instituted in 1901. It was held there that the
pedigree filed in 1898 was not admissible having been made post litem motam. As
a contrast there is the decision in Bahadur Singh v. Mohan Singh(2), where the
Privy Council held certain statements made in 1847 to be admissible as the
heirship of the then claimants was not then really in dispute. (See also Field
on the Law of Evidence, 9th Ed.
Vol. III, p. 1847).
There can be no controversy that when
Surayamma filed her written statement a dispute had arisen as to the age of
Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had alleged
that Somaraju was a minor at the time he executed his will and Surayamma had in
denial of that averment asserted that Somaraju was a major at the relevant time.
The controversy therefore having existed at the time when the said statement
was made it was inadmissible both under sub-section 5 and sub-section 6 and
could not be availed of by the respondents.
As regards the subsequent conduct of the
parties it is clear that both Sitaramaraju who was then the only reversioner
under the law as it stood prior to 1929 and the said Surayamma (1) 35 I.A.166.
(2) 29 I.A.1.
304 conducted themselves on the footing that
the said will was competently made and by virtue of that will Surayamma had
become the absolute owner of the properties left by him.
Similarly, the three daughters of Surayamma,
the mothers of the appellants, and the appellants themselves accepted the
statements made by Surayamma in favour of her daughters and took possession of
and enjoyed the lands in suit. Neither the said daughters nor the appellants
until the present suit was filed ever raised any contention regarding the
validity of the said will. The authority of Surayamma to settle the said properties
treating herself as the absolute owner of those properties was never challenged
by the appellants.
Such a conduct iS only consistent with the
fact that it was understood amongst the members of the family that Somaraju was
a major at the time of the execution of the will and the will was validly made.
In our view there being the statement of Somaraju admissible under s. 32(5)
coupled with 'the evidence of D.W. 4 as also the evidence as to the conduct of
the parties before the Court there was ample evidence on which the trial Court
and the High Court could rightly found their conclusion that the will was made
at the time when Somaraju was a major. Such a conclusion was obviously fatal to
the appellants' claim in the suit.
In view of our conclusion that the said will
was competently made it is not necessary to go into Mr. Desai's contentions.
Nos. 4 and 5. There remains therefore his contention No. 6 only for
consideration.
The argument that Somaraju did not dispose of
land admeasuring about 15 acres 14 cents by the said will and that there was a
resultant intestacy is rounded upon the fact that in the Schedule to the said
will out of Survey No.
5/1 which measured 18 acres 67 cents a
portion only is set out and the Schedule does not set out Survey Nos. 5/5 and
5/12. The said will, however, in para 1 expressly states that the testator
thereby was disposing of his entire property, movable and immovable, in favour
of his mother. It also states that the total area of land possessed of by him
was 60 acres 9 cents and that he was bequeathing to his mother the said entire
area. The fact that the total area comprised of the several survey numbers
mentioned in the Schedule do not aggregate 60 acres 9 cents appears to be the
result of some mistake. It appears from the record that the survey numbers in
vogue in 1902 were altered in/912. It is not possible to say what record was
with Somaraju when he described the said land by its survey numbers in the said
Schedule and whether he had at that time the old or the ,new record of the
revised survey numbers. It is possible that if the revised record was not
before him at that time a mistake in describing the land by its survey numbers
might occur and that would explain the discrepancy between the total
measurement mentioned in the body of the will and that in the Schedule.
305 In face, however, of the expressly
declared intention in the body of the will that he was disposing of the entire
property including the land measuring 60 acres 9 cents it is impossible to hold
that he desired to hold back a portion thereof from his mother and intended to
leave it intestate.
We do not therefore find any justification
for interfering with the conclusion of the trial Court and the High Court that
Somaraju disposed of the entire property. Consequently we must reject Mr.
Desai's contention.
The appeal is dismissed with costs.
V.P.S. Appeal dismissed.
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