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

2. The pedigree set out below clarifies the relationship between the partiesPullamraju died leaving him surviving his undivided son 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 Somarajus will was not valid as he had executed, it when he was a minor and was not in a sound disposing state of mind. Surayamma in her written statement filed in that suit contended that Somaraju was a major having been born or 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 Sitaramaraju 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 ho received it out of about 57 acres of land and the rest of the property was retained by Suryamma. Thereafter, Surayamma conduced herself as the absolute owner of the properties which came to her under the said decree. By two deeds both 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 1 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 the land left by Somaraju were not disposed of under the said will, that there was consequently intestacy in resect 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 Suryamma 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 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 Courts 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 Courts 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 Suryamma were estopped from disputing either the will or the said decree.

Reasoning: 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.