Case: Kalidindi Venkata Subbaraju &amp; Others Vs. Chintalapati Subbaraju &amp; Others

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 Halsburys 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, (1908) 35 Ind App 166 (PC) 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, (1902) 29 Ind App 1 (PC) 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).13. 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.14. 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 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.15. In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desais contentions Nos. 4 and 5. There remains therefore his contention No. 6 only for consideration.16. 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 founded 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 does 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 1912. 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. 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. Desais contention.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. 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 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 attestedHigh Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the saidwar 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 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 should proceed to construe those contents. We are supported in this conclusion byHigh 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 in a sound disposing state ofis 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 orthe writer of Exs. 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 neither of them was relied upon before us.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 onebeing the position 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.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.14. 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 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.15. In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desais contentions Nos. 4 and 5. There remains therefore his contention No. 6 only for consideration.16. 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 founded 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 does 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 1912. 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. 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. Desais contention.