SHELAT, - (1.) THE following Judgment of the court was delivered by :-
(2.) 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 :- JUDGEMENT_947_AIR(SC)_1968Image1.jpg Pullamraju died leaving him surviving his undivided Somaraju, his widow Surayamma and three daughters. Somaraju died on 29/03/1921 whereupon the said Surayamma claimed that he had left a will dated 26/03/1921 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. Surayamma in her written statement filed in that Suit contended that Somaraju was a major having been born on 7/01/1903 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 30/03/1925 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 3/11/1947 Surayamma gifted another portion of the said property to defendant No. 6. Surayamma died on 22/10/1950. 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 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.
(3.) 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 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.;