KALIDINDI VENKATA SUBBARAJU & ORS. versus CHINTALAPATI SUBBARAJU & ORS.

KAUDINDI VENKATA SUBBARAJU & ORS.

C:HINTALAPATI SUBBARAJU & ORS. November 21. 1967

IJ. c. SHAH, s. M. SIXRI AND J. M. SHl!.LAT, II.]

Indian Evidence Act (I of 1872), .ss. 32(5) and (6). 65 and 90-Statemeflt as to age in will-If relevant-Scope of the words 'Befvrr 1/ie question in is.nu: was rai.se~-Co171 of wiJJ admitted as s<condary e.-i· tknce--Due execution of original will f1T'OVed-lf conltnu of copy '"uld be relied o,.._Presumption under s. 90-lf could ~ drawn wi!h re!lpe«t ro copy.

Will--On whom burden of proving dM execution b<rween body and schedule-Effcc1 of.

lies-Discrf'pa11C'<'

Birth regis1er-()riKinaJ not produced-EndorJenunt ~lfl1ing ro 11h-sence of entries-Writer of endorsement not exami~d-1/ endor.,t·ni''nt adnUssible in evidence.

Hindu died bequeaoh1og all hi; properties to his mother absolute!\ by will executed three days before his death. lo the will he stated his age to be I lJ y~.!:lr\, 11n<l that he w~s thereby dispo.'\ing of his entire propeny, movable and immovable, in favour of hll mother. After hj, death, the nearest reversioner under the law as it then stood, filed ~uit for declaration that the will was not valid because it was executed by the t~lator \W\en he wa.'i minor and when be was not in sound dis-posing stale of mind. ·inc n101hcr of the te\t.ator (legatee) cbntcs'OO lhc suit and asserted in her written statement that when he executed the will. the testator was major and was in sound disposin~ state of mind. The suit was compromised. By the compromise, the re\-ernioncr admitted· that the testator. when he executed the will, was major aod was in sound disposin2 state of mind, that the will was valid and 11<nuine. and the testator's properties were divided between the rever5ioner and the )c~alee. There was decree in terms of the compromise. lbere.afler, the rever-sioner and the le2atee conduc1ed themselves as the absolute ownerii; Ot their rcsix~tive 'Shares of the property. The l~atee e:xecu1ed settlement deeds in favour of her dau2hters with respect to pan of the land '"""ived bv her under the decree. The daulditers took pogsesSion of the proper· ties acceptin2 their mother as their absolute owner. After .the death of the le2atec, the appellant•. who were the son• of those daul(htcr. ohtained deed of surren,.fcr f-om their mothers acceptin2 the le~atee a.ii; the abs.er lute owner of the properties. Thev then filed suit a.e.aiost the reii;pon-dents. who were the descendants of the reversioner who filed the first suit. contendin~ that the compromise decree in the first suit wa.~ collusive. th;it the testator waii; not major nor of sound disposin~ state of mind v.·~n he exeruted the will. that the 1"ill did n"t. CO\'!" ail the properties of the testator and t1'ial the apoellanto; were in anv event entitled to those pro-rertie-. with r~pc-cr to v.·hich thei-·~ was an in'eHacy. a5 the siii;tefs ~ons of the la•t male holder under the Hindu Law Of Inheritance (Amendme-n•) Act of 1929. The '"'pondcnts conle;ted the suit and J!8Ve nolice to th• at>Pellant< to produce the ori~inal wil) alle11in2 that ir wa• in the PO""-'·

sion of the appellants. but the appellants denied the allegation, and the respondents, thereupon, relied upon certified copy of the will prnduced from the records of the court filed in the first suit.

The trial court dismi<sed the suit and the High Court confirmed the dismissal in appeal. ·

In appeal to this Court, it was contended Inter alia : (I) that the burden of proof that the will was validly executed by the testator and that he was major at the time of executing it was upon the respondents and that they failed to discharge that burden; and (2) that there wa.• an intestacy with respect to portion of the land an<l that the appellants \o,;ere entitled to it.

HELD: (IJ(a) As the lower Courts hcl<l that the apoellants dclihe-c rntely withheld the original will, its certified copy could be admitted as secondary evidence of its contents under s. 65 of the Evidence Act, 1872. But the High Court was not justified in presuming under s. 90 of the E!vidence Act, that the will itself was duly executed and attested merelv because the copy was more than thirty years old and was produced from proper custody, Such presumption arises only in respect of the original document and not with respect t<- cop". [297 H; 298 A, C, D, Fl

1-lariha.r Prasad v. Mu'it. of Munshi Nath Prasad, [1956] S.C.R. 1. followed.

Munnalal v. Kri.JIUbal, A.l.R. 1947 P.C. IS and Basom Singh v. Brij Rai, 62 I.A. 180, referred to.

• But., apan from the presumption. on the oral evidence adduced and from the conduct of t'>e legatee, the Higl\ Court was justified, in conclud-E ing that the testator executed the will 3n'd was at that time in ~ound di.posing state of mind and in construing the contents of the will a. disclosed by the certified copy and holding that it was natural and rational. (298 Q; 299 C. F-0]

Setlh((V" v. Somcyaju/11, 56 I.A. 146, applied.

(b) The respondents who relied on the wiil had discharged the onus which lay on them, namely, of pro."ing that the testator was maior at the time he executed the will. [299 G-H] ·

The statemenc of the mother of the testator in the written statement of the earlier suit that the testator was major w.S not relevant either under s. 32(5) or 32(6) of the Evidence Act, because, it was made p<nt Utem motam. The words in the sub-section, namely, 'before the question in issue was raised' do not mean before it was raised iii the particuJar 1itigation in which such statement is sought to be adduced in evideni:e. They mean before the existence of any actual controversy. When ·the legatee filed her written statement in the first suit dispute had arisen as to the age of the testator; and the controversy having existed at the time when the statement was made, the statement was inad-missible. (303 B-D, F-H]

Balu:ulur Singh v. Mohan Singh, 29 I.A. I Mathura Prasad, 35 ·I.A. 166, referred to.

and Kalka Prasad v.

But, the statement of the testator in the will that he was major at the time he was executine it .was relevant under th~ sub-sections because,

the qucstton of age falls within the sub-<ections a.s it indicates the com-n\enccm'°nt of relationship. (303 1

Md. Syedol Ar/]i11 v. Yeo/1ooi Gark. 43 I.A. 256, Rcmia Cha11dra Dutt v. Yogeshwar Narain Deo, l.L.R. 20 Cal. 758, Oriental Govt. Security Life Assurance Co. Ltd. v. Narisimha Chari, J.L.R. 25 Mad. 183, Guiab lhurkur v. Fada/i ( 1922) 68 l.C. 566, Pro/had Chandra v. Ramsara11, A.LR. 1924 Cal. 420, and Mst. Naima Khatun v. Bosant Singh, A.l.R. 1934 All. 406 .-eferrcd.

Further the conduct of the appellants an1 their mothers was coosis· rent only with the fact that it was understood among<! the members of the family that the testator was .a major at the limo of the execution ol • th, will and 1hat the will was validly made. (303 H; 304 A-DJ

The documents relied upon by the appellants, namely, memorandum .ind an endorsement received from the Taluk Ofiice ~ho\\·ing that there 'J.·l!rc no t."fl~ires relating to the birth of any children in t~ testator's family in the birt..h register for the year in which the testator ~ated be was born. were not admissible in evideoee as the writers of the docu-ments were not eltllm.ined to testify to the content& of those documents and to establish that no.withstandin~ their dili~ent cft"ort' th• oril!inal rcgi•ter wa< not trnceabl~. (301 B-D]

(2) In face of the expressly declared intention in 1hc hody of the will that hr was disposing of the entire property it is impo!isible to hot<l :hat the te<lator desired to hold back Portion thereof from his mother and leave it intestate, merely because, there was discrepancy betwoen the total measurement mentioned in the body of the will and that in the ;chedule lo the will. !304 H; 305 Al

CIVIL APPELLATE JURISDICT!OS ; Civil Appeal No. 129 of 1965.

~ppcal 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. Ganaparhy Tyer, for respondents Nos.

The Judgment of the Cour', was delivered by

Shclal, J. This appeal bv special leave is dire~1ed against the judgment and decree of the High Court of Andhra Pradesh wn-finning the dismissal by the trial Court of the. suit filed by appcl· !ant' I and 2.

The pedigree set out below .clarifies the relationship between the parties :-

Chintalapati Venkatapatiruju I I . Sith1ramaraJ u I SomaFaju (Plaintiff in O.S. 21/23) I I I Pullamraju (died 19-IZ-1913) widow ! Surayamma {died 22-1().50) I I I I Daughter Subbay- '. Vcnkay-Sc.maraju Son (saiJ R'idhyamma (died tn yamma4 yamma (<lied to have b..:en (dicd6 ·4·27) infancy) (died) 4 (died 29-3-21) born and diLd 1 l-H-56) in infancy). I Kalidindi Vcnkata Kali· Pinnan1araju Subbaraju (tst dindi Gopala Prabhakara Plaintiff) Raju (2nd LakshmipatirajL• Plainti'T) (6th Defendant) l I VenkataPaLi V~ayamma Rajaya1nnla Surya1nma Raju I Subbarsju (I st Defendant l I I Rangan11na Sitaramaraju Ycnkatapatin1ju Vijayasubbaraju (2nd D.:fendant) (3rd Dcfcudant) (4th D.:fcndant)

Pullamraju died leaving him surv1vmg his undivided son Somaraju, his widow Surayamma and three daughters. Somaraju died on March 29, 1921 whereupon the said Su•ayamma claimed that he had left 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 declara-tion that Somaraju's will was not valid as he had executed it when he was minor and was not in sound. disposing state of mind.

Surayamma in her written statement fJle<l in that Suit contended that Somaraju was major having been born on January 7, 1903 and was in sound di,posing state of mind when he executed the said will. The suit ended in compromise decree by which Sitara-maraju admitted that Somaraju was major when be died, that he was in sound disposing state of mind and that the will there-fore wa~ genuine and valid. Under the compromise decree he re-ceived 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 33, 1925 she settled part of the lar.d received by her under the said decree in favour of her two daughters the mothers of plaintiffs I 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 defen-dant No. 6. Surayamma died on October 22, 1950. Plaintiffs I and 2 and defendant 6 (the present appellants) the{.Cafter ol>-tained 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 ihe sons of his sisters; that the said compromise decree was collllsive. that the said Somaraju did not execute the said will that even if he did he was not major nor of sound disposing state of mind when he executed it and that therefore the said will was not valid. By subsequent amendment of the plaint they also contended that some of the lands left by Somaraju were not disposed of under the said will that there was consequently intestacy in respect tbercoi which in any event they as reversioners were entitled to claim. The res-pc>ndents resisted the suit contending that the said will was valid, that the said compromise decree was bindin)! on the appellants and that tlicy 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 0f 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 orij!inal will was with tlie appellants and was suppressed by them, that there-fore its certified copy produced from the records of the court was admissible, that the said. will was valid as Somaraju was major and in sound disposing state of mind when he executed it, that the said decree was by way of family arrangement in settlement of bona fidr disputes. that it was binding upon the appellants and that the appellants were estopped from disputing the will or the said decree. The trial Coun also repelled the contention that Somaraju left any property undisposed of under the said will or

that the appellants became entitled thereto upon an intestacy. Ii; 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 ihe certified copy of the said will was admissible as secondary evidence thereof and that Somaraju was major and in sound. disposing state of mind when he executed the said will. The High Court also confirmed the trial Court's conclusion that ~ 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 conten-tions:-

( 1) that the burden of proof that the will was validly executed by Somaraju and that he was 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 nm justified; ( 3) that the High Court erred i.i ho!Cing 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 net proved to have been validly executed, the said compromise decree wa' binding on the appellants and estopp-,d them from challenging the validity of the will or the said decree; ( 5) that the appellants did not claim through the said Venkamma but ·mder 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 ad-measuring about 15.14, that there was therefore intestacy in regard to if and' the appellants "' 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 ob-tained 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 tu the appellants to produce 'the original wi]l alleging that it was in their possession but the appellants denied the allegation aild failed to prooace the will. Both the trial Court and the High Court were of the view that the said will along wi'th other papers of Somaraju were in the appellspts' custody, that they had deliberately withheld it as it was in their interest not to produce it. The trial Court therefore wasin these circuni,tancc' ju'1ified in admitting the ccrtilicd copy of the will as scwndary evidence of the contents of the will. Since the will was executed in 1921 and the testator had died soon ;tfter its execution it was not possible to produce either i1s writer or the witnesses who attested it. It was undisputed that it; scribe and the attesting witnesses were all dead except Dalapati Ven.katapathi Raju, D.W. 4. But the appellants' contention as regards D.W.4 was that be was not the same person who anested the will. The High Court appears to have relied upon s. 90 of the Evidence Act and to have drawn the presumption that the wiU being more than 30 years old it was duly executed and attested by the persons by whom it purported to h:ive been executed and attested. Such presumption, however. under that section arises .in respect of an original document. (See Mtmna/a/ v. Krlshibai)([1]). Where certified copy of docwnent is produced the correct position is a, stated in Basant Singh v. Brij Rai(') where the Privy Council laid do"'11 that if the document produced is copy admitted under s. 65 as secondary evidence and it is produced from proper custody ;ind is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of copy there-fore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argumenl that where copy of 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 purp0rt-ing or proved to be 30 years old" in s. 90, the Privy Council held that the production which entitles the Court to draw the presump-tion as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcu .• and AUahabad on which the argument wa~ based were not correctly decided. This view has since then been approved of by this Court in Harilwr Prasad v. Must. of Munshi Narh Prasad('). 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. arart from such presumption there was evidence from which the High Court could conclude that 'the will'"~' duly exe-cuted 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 192:1. Secondly, there was evidence of her hav-ing 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 ab,;olute owner basing her claim under the said will. Fourthly. I 1 .\.I R. 194i P.C. I'· fcl 6" I.A. t8l.

tl> Jt956J S.C.R. t. t9.

there were the three senlement 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 111akp ,due provision for his three sisters instead of c\ying intestate and the properties thereon going to the said Sitaramaraju and his heirs under the Jaw as it then swod. There was next the evidence of D.W. 4 testifying to the execution of the will by Somaraju and to his having attested the original will along with other witnesses. His evidence also was that Somaraju was then in sound disposing state of mind. Both the trial C0urt and the High Court accepted t~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 con-clude and in our view rightly that Somaraju executed the said will and was at the time in sound disposing state of mind. The effect- of the certified copy of the will having been thus rightly ad-mitted was as if the contents of the will were before the Court and the Court could proceed to construe those contents. We are sup-D ported in this conclusion by authority. In Setthaya v. Somp.ya-julu(') the original grant which was 250 years old was lost but copy of it wa' produced from the respondents' custody. J t bore the following endorsement of the predecessors of the respon-dents : '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 aut.henticating the copy were evidence as statement by deceased person in document relating to rele-vant fact and also as an admission of the respondents' predeces-sors. 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 tha,t 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 rati<;mal and proved that Somaraju was in sound dis-posing state of mind.

The question. however, still remains Vihether Somaraju was major at that time. The onus of proof that he was then 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. Pul!amraju were born in the village Isuka-palli. The parties in support of their rival contentions produced

(I) 56 I.A. 146.

(2) A.1.R.1941Mad.179.

bo1h oral and documentary evidence. Apart from the certifi~d 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 m the trial Court. B24 produced by the respondents was an ~x­tract from the birth register of lsukapalli. Exs. A4 and A5 pro duced by the appellants were respectively an extract from the birth register of l.sukapalli and an extract from the death register •elat-ing to Somaraju's death. Ex. A9 also produced by the appellant.< was 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 lsukapalli. Curiously the registers of births and deaths of Isukapalii village for 1903 and 1905 were available in 1955 hut in 1957 when the trial Court called for these registers it was in-fonncd that those registers could not be traced. The result w:,, that the only evidence before the Court consisted of certifiul copies of extracts, Exs. A4 and A5, frori1 those registers and the said letter Ex. A9. Ex. 824. it appear.;. was motheaten. overwritten and tampered '<''ith at some· places with ink different from the ori• gin"l ink in which the rest of the document wa; written. Both the trial Court and the High Court were agreed that it could not thcrd'ore be considered as furnishini: evidence of Somaraju\ date of birth. Ex. A4 was an elClract of birth register for the year 1905. The appellants' contention was that this extract furnished evidence that Somaraju w•ts born in 1905. It was snid 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 assi't the appellants as it only indicated at best that son wa, born of Pul!amraju in 1905. The caso of the respondents. how-ever. wa< that another son besides Somaraju was born of Pullam-raju after Somaraju's birth. In the absence o.f any evidence led by the appellants that A.4 related to Somaraju and no one else. the extract obviously cowd not establish that Somaraiu was horn in 1905 and therefore was minor in 1921. Ex.A.5 showed that Somaraju died on March 29. 1921 but there was dispnle as to the date of his death. There was no doubt reference in 1hat extract that he dieJ at the age of 16. But the High Court found that the figure '16' for his age was written in an ink different frem that used for the others entries in the extract and that that figure was an interpolation made by someone subsequently. Roth the trial Court and the High Court were in fac'. 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. Ediibits B.24, A.4 and A.5 thus hav-ing been found to have been tampered with and therdorc un-reliable documents, it is not necessary for 11s to go. as the High Court did. into the question whether such extrai:ts were admissible under s. 35 of the Evidence Act or not.

Besides these extracts, the appellants also produced Bxs.A. 8 and A.9 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 Tanu-walla village relating to the birth of any of the children of Pullam-B raju. The endorsement stated that an application for extract from the birth register for 1903 in respect of the birth of any of the children of Pullamraju was filed but as there were no such entries in the birth regis'ter for Isukapa!li for 1903 the stamps sent by the applicants for. the copy were returned. Neither the writer of Ex.A8 nor of A.9 was examined ·to testify to the contents of the said memo and the said endorsement and to establish that not-c withstanding 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 dS 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 tPa!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 Soma-raju as to his age in the said will; (2) the statement of Surayamma in the said written statement and ( 3) the subsi:quent 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 wri~en 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~2(6) provides that

"When the statemel)t relates to the existence of any relationship by blood, marriage or adoption between LI Sup.Cl/68 -5

persons deceased, and is made in any will or deed relating to the affairs of the family to w)lich any such deceased person belonged, or in any famiiy pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made".

Both the sub-sections require that such statement can be admis-,ible 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 statement regarding the age of the person con-cerned is not one relating to the existence •of any re!ationship by blood or marriage or adoption. But ·such Literal construction is not proper one as has been ruled in more than one decision. In Orie11tal Govt. Security Life Assurance Co. Ltd. v. Narasimha Ci1.1ri<' J. Bhashyam Ayyangar J. l-'ollowing Rama Cha11dra Dutr v. Yogeshwar Narain Dea('). held that statement as to the age of member of family made by his deceased sister is admissible under s. 32(?), the principle being that the time of one's birth relates to the commenc.f!ment of one's relationship by blood and therefore statement as to his a~e made by person having special knowledge relates to the existence of such relationship. This ob-servation was approved in Mohammed Sycdo/ Arif!in v. Yeohooi Gark(') where the Privy Council held that the question of age m such case falls withins. 32(5) as it indicates the cnmmencement of such relationship. In Guiab Thakur v. Fadali(') statement by person made when hr was 36 years of age that he was ad;:ipt-ed when he was 4 years old was held admissible after his death to prove the fact of his adoptio< as he possessed special know-ledge about the relationship required by the section. It was also held that the fact that the person making the adoption died while Ihc adoptee 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 Khat1111 v. Basant Singh(') the High Court of Allahabad following the deci-sion in Ariffin v. Yeohooi Gark(') held that statement as regards age is tantamount to statement as to the existence of relation-ship. Therefore statement by an adoptive mother as regard> the age of the adopted boy, although it would not show her own relationship with him was admissible. In Pro/had Chan-dra v. Ramsaran("), the Calcutta High Court held that state-ment in the Guardianship application as to the date of birth is ad-missible if the person who had made it is dead and had special means of knowledge of t~e relationship. This being the position

(l) I.LR. 25 Mad. 183.

(2) I.LR. 20 Cat ~8.

(3) 43 I.A. 256

(4) (1922) 68 J.C. 566.

(5) A.IR. 1934 All. 416.

(6) A.LR. 1924 Cal. 420, 422.

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 major and was com-petent to make the said will.

A~ regards the written statement of Surayamrna the position I! 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 /item motam by persons wh,J are dead, i.e., before the comm~ncement 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 statement is sought to be adduced in evidence. The principle on whi~h 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 !item 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 ]) dispute arose in 1896 on the death of one Parbati. In 1898 in suit brou~ht by one Sheo Sahai 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 /item motam. As contrast there is the decision in Bahadur Singh v. Mohan Singh('), where the Privy Conncil 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. HI, p. 1847).

There can be no controversy that when Surayamma filed lier written statement dispute had arisen as to the age of Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had allep:ed that Somaraju was minor at the time hr executed hi-.: will and Surayamma had in denial of that averment asserted that 'Somaraju was major at the relevant time. The controversy therefore hav-ing existed at the time when the said statement was made it was inadmissible both under sub-section 5 and "ub-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 1 929 and the said Surayamma.

(2) 29 l.A. l.

conducted themselves on the footing that the said will was compe-tently m:ide and by virtue of that will Surayamrna had become the absolute owner of the properties left by him. Similarly, the three daughters of Surayamrna, the mothers of the appellants, and the appellants themselves accepted the statements made by Surayarrima in favour of her daughters and took possession of and enioyed the lands in suit. Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regardinl! the valid;ty 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 conduct is only consistent with the fact that it was understood amongst the members of the family that Somaraju was 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 admis-sible 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 major. Such conclusion was obviously fatal to the appe!Iants' claim in the suit.

In view of our conclusion that the said will was competentlv made it is not necessary to go into Mr. Desai's contenlions Nos. 4 and 5. There remains therefore his contention No. 6 only for consideration.

The argument that Somaraju did not dispose of land admea-' suring about 15 acres 14 cents by the said will and that there was resultant intestacy is founded upon the fact that in the Schedule to the said will out of Survey No. 5/1 which measured 18 acres 67 cents portion only is set out and the Schedule does not set out Survey Nos. 5/5 and 5/12. The said will, however, ir: para I expressly states that the testator '.hereby 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 bis mother the said entire area. The fact that the total area comprised of the several survey numbers mentioned in the Schedule do not ag~re­gate 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 1912. It is not possible to say what record was with Somaraju when he descnbed the said land by its survey numbers in the said Schedule and whethe;· he had at that time the old or the new record of the revised survey numbers. It is pos-sible that if the revised record was not before him at that time mistake in describinl! the land by its survey numbers might occur and that would explain the discrepancy between the total measure-ment mentioned in the body of the will and that in the Schedule.

In face, however, of the expressly declared intention in the body of thl? will that h" 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 portion thereof from his mother and intended to leave it intestate. We do not therefore find any justi-fication 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.