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It was undisputed that its scribe and the attesting witnesses were all dead except Dalapati Venkatapathi Raju, D.W. 4. Ratio |
But the appellants ' contention as regards D.W.4 was that he was not the same person who attested the will. ARG |
The High Court appears to have relied upon section 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. Ratio |
Such a presumption, however, under that section arises in respect of an original document. Ratio |
Where a certified copy of a document is produced the correct position is as stated in Bassant Singh vs Brij Rai(2) where the Privy Council laid down that if the document produced is a copy admitted under section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures... |
The production of a copy therefore does not warrant the presumption of due execution of the original document. Ratio |
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. Ratio |
Relying on the words "where any document purporting or proved to be 30 years old" in section 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 Allah... |
This view has since then been approved of by this Court in Harihar Prasad vs Must of Munshi Nath Prasad(3). Ratio |
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. Ratio |
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. Ratio |
There was, firstly, the fact of Surayamma having produced the will soon after its execution in Suit No. 21 of 1923. Ratio |
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. Ratio |
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. Ratio |
Fourthly.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 provis... |
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. Ratio |
His evidence also was that Somaraju was then in a sound disposing state of mind. Ratio |
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. FAC |
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. Ratio |
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. Ratio |
We are supported in this conclusion by authority. Ratio |
In Setthaya vs Somayalulu(1) the original grant which was 250 years old was lost but a copy of it was produced from the respondents ' custody. PRE |
It bore the following endorsement of the predecessors of the respondents: 'Originals have been retained by us and copies have been filed, 1858 '. PRE |
The Privy Council held that the copy was properly admitted under section 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 a... |
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. PRE |
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. Ratio |
The question, however, still remains whether Somaraju was a major at that time. Ratio |
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 vs Paraskthy)(2). Ratio |
The appellants ' case was that Somaraju was born in 1905 and not in 1903 as alleged by the respondents. Ratio |
The admitted position was that all the children of Pullamraju were born in the village Isukapalli. Ratio |
The parties in support of their rival contentions produced both oral and documentary evidence. Ratio |
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. Ratio |
B24 produced by the respondents was an extract from the 'birth register of Isukapalli. Ratio |
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. Ratio |
exhibit 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. Ratio |
Curiously the registers of births and deaths of IsUkapalli 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. Ratio |
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 exhibit A9. Ratio |
exhibit 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. Ratio |
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. Ratio |
exhibit A4 was an extract of birth register for the year 1905. Ratio |
The appellants ' contention was that this extract furnished evidence that Somaraju was born in 1905. Ratio |
It was said to have been obtained by Surayamma in 1941 as she intended to file some suit which she ultimately did not. Ratio |
Assuming that Ex A. 4 was admissible under section 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. Ratio |
The case of the respondents however was that another son besides Somaraju was born of Pullamraju after Somaraju 's birth. Ratio |
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. Ratio |
exhibit A. 5 showed that Somaraju died on March 29 1921 but there was dispute as to the date of his death. Ratio |
There was no doubt reference in that extract that he died at the age of 16. Ratio |
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. Ratio |
Both the trial Court and the High Court were in fact of the opinion that Exs.A4 and A.5 were not genuine. Ratio |
The High Court was further of the view that exhibit A.5 had been tampered with and therefore could not be relied upon. Ratio |
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 section 35 of the Evidence Act or not. Ratio |
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. Ratio |
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. Ratio |
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. Ratio |
Neither the writer of exhibit 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. Ratio |
A.8 and A.9 could not be admitted in evidence without the formal proof of the entries and were rightly held inadmissible. Ratio |
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. Ratio |
Both the parties, as aforesaid, led considerable oral evidence. Ratio |
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. Ratio |
No reason has been shown that their assessment of this evidence was wrong. Ratio |
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 mother... |
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. Ratio |
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 ... |
Both the sub sections require that such a statement can be admissible only if it was made before the question in dispute was raised. Ratio |
It is clear from sub section 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. Ratio |
But such a literal construction is not a proper one as has been ruled in more than one decision. Ratio |
In Oriental Govt.Security Life Assurance Co. Ltd. vs Narasimha Chari(1).Bhashyam Ayyangar J. Following Rama Chandra Dutt vs 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 section 32(5), the principle being that the time of one 's birth r... |
This observation was approved in Mohammed Syedol Ariffin vs Yeohooi Gark(3) where the Privy Council held that the question of age in such a case falls within section 32(5) as it indicates the commencement of such relationship. PRE |
In Gulab Thakur vs 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. PRE |
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. PRE |
Similarly, in Mst.Naima Khatun vs Basant Singh(5) the High Court of Allahabad following the decision in Ariffin vs Yeohooi Gatk(3) held that a statement as regards age is tantamount to a statement as to the existence of relationship. PRE |
Therefore a statement by an adoptive mother as regards the age of the adopted boy, although it would not show her own relationship with him was admissible. Ratio |
In Pralhad Chandra vs 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. PRE |
This being the position under section 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. Ratio |
As regards the written statement of Surayamma the position of her declaration therein is somewhat different. Ratio |
Both sub sections 5 and 6 of section 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. Ratio |
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. Ratio |
The principle on which this restriction is based is succinctly stated in Halsbury 's Laws of England, 3rd Ed.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 a... |
In Kalka Prasad vs Mathura Prasad(1) a dispute arose in 1896 on the death of one Parbati. PRE |
In 1898 in a suit brought by one Sheo Sahai a pedigree was filed. PRE |
After this, the suit from which the appeal went up to the Privy Council was instituted in 1901. PRE |
It was held there that the pedigree filed in 1898 was not admissible having been made post litem motam. PRE |
As a contrast there is the decision in Bahadur Singh vs 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. PRE |
(See also Field on the Law of Evidence, 9th Ed.III, p. 1847). Ratio |
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 wa... |
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. Ratio |
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 Sura... |
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. Ratio |
Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regarding the validity of the said will. Ratio |
The authority of Surayamma to settle the said properties treating herself as the absolute owner of those properties was never challenged by the appellants. Ratio |
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. Ratio |
In our view there being the statement of Somaraju admissible under section 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... |
Such a conclusion was obviously fatal to the appellants ' claim in the suit. Ratio |
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. Ratio |
There remains therefore his contention No. 6 only for consideration. Ratio |
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 o... |
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. Ratio |
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. Ratio |
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. Ratio |
It appears from the record that the survey numbers in vogue in 1902 were altered in/912. Ratio |
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