JUDGMENT
(Delivered by Abdur Rahman, J.)
This appeal arises out of a suit instituted by two plaintiffs, one of whom is a minor, for a declaration that the will Ex. X alleged to have been executed by one Thangavelu on the 10th August 1928 was not executed by him and could not be, at all events, said to have been a valid will as the testator had not attained majority on the date on which the will was said to have been executed and that inasmuch as he (i.e the testator) was suffering from cholera and died within a few hours of the alleged execution of the will he could not be said to have possessed a sound disposing mind. The will was presented for registration a week after Thangavelu's death by one Kuppusamy who was the husband of the testator's sister Rajambal and was ordered to be registered on the 4th October 1928 in spite of objections raised by the 14th defendant the elder brother of the present plaintiffs and by one Kandasami. The present suit was instituted on the 8th August 1934. The present plaintiffs alleged that they were the nearest heirs to the estate of the late Thangavelu along with their elder brother the 14th defendant and were held to be so by the trial Court. Since no objection was raised before us in regard to that finding, it may be taken to be correct. Several defences were raised to the suit, but the three questions in regard to which we have been invited to express our opinion relate to the genuineness of the will and to the testator's capacity to execute the same, raised on behalf of the plaintiffs, and to limitation raised on behalf of the defendants. The capacity to make the will was attacked both on the ground that the testator was a minor and that he had no sound disposing mind at the time when the will was alleged to have been executed by him. The lower Court came to the conclusion that the suit was barred by limitation and Thangavelu had attained majority before 1928 and possessed a sound disposing mind at the time when the will was executed by him. The suit was therefore dismissed and the plaintiffs have preferred this appeal.
Since Art. 92 of the Limitation Act would only apply if we were invited to give a declaration in regard to the invalidity of the will on the ground of its being a forged one and inasmuch as the will was also being contested as above stated by the plaintiffs on the ground that Thangavelu had no capacity to make the will to which Art. 120 and not Art. 92 of the Limitation Act would apply, we decided, in spite of the fact that one of the plaintiffs was a minor, to hear arguments first on the question of his (i.e Thangavelu's) majority as we felt that if he was found to be a minor on the date of the alleged will, it may be unnecessary for us to decide the remaining questions of forgery, of Thangavelu's sound disposing mind and even of limitation. Although we heard arguments on the other points in the end as well, yet we are of opinion that this case can be finally decided as we anticipated on the question of Thangavelu's majority on the date of the alleged execution of the will. We thus propose to go into that question now.
There is not the slightest doubt that in a probate proceeding, if the will was being propounded by the defendants as petitioners, the onus of proving that the testator had the capacity to make a will and was possessed of a sound disposing mind at the time of its execution, would lie on the propounders. The question is whether this rule as to the onus of proof would be affected by the fact that we are not dealing with the will in a probate proceeding or that the validity of the will was being relied upon not by the petitioners, as it would be in the case of a probate proceeding, but by the defendants in the suit. After hearing the learned Counsel for the parties we are of opinion that the onus of proof would not be affected by these facts. It is the defendants who come before the Court with a positive case and although the objection regarding the want of Thangavelu's capacity to make the will was raised in the plaint it was really a denial of a positive allegation which the plaintiffs anticipated would be made by the defendants if they wished to contest the claim. The common law rule of evidence is that the burden of proof lies on the party who asserts the affirmative. The plaintiffs were denying the genuineness of, and Thangavelu's capacity to make, the will. They did not come to Court with a negative allegation which they would have been expected to establish. Had the assertion and proof of a negative fact been essential for their success the onus would have been on them to establish the negative fact. But they were in this case merely traversing an affirmative allegation which they thought would be, and was in fact made on behalf of the defendant. This question was fully considered by a Division Bench of this Court in Krishnamachariar v. Krishnamachariar (1) and we are in respectful agreement with the conclusions contained in the decision. We would therefore hold that the burden of establishing that Thangavelu was a major would lie on the defendants although after the evidence has been led on behalf of the parties as it is in this case it may not be of very great consequence.
As to the question of fact in regard to Thangavelu's majority, learned Counsel for the respondents placed reliance first on a statement in the will itself purporting to have been made by the testator that he was 21 years of age. It was contended that this would be relevant under S. 32(7) of the Indian Evidence Act. It is unnecessary for us to go into the question whether this would be so as we find that the statement as to his age in the will according to its scribe (D.W 5), was not made by the testator but by the persons present at the time when the will was being written and could not therefore be regarded as a testator's statement at all. In fact an important admission was made by this witness that some of the statements contained in the will were also not made by the testator but were written by this witness according to, what he calls, the common custom and even without regard to actualities. It is, therefore, impossible to place any reliance on this part of the statement contained in the will. Reliance was next placed on certain dealings which the deceased had with the Union Bank Kumbakonam, between March 1927 and August 1928 (Exs. II, III and V). It was contended that he could not have had these dealings with the Bank unless both he and the Bank considered, or at least he represented himself and the Bank believed him to be a major. It is unnecessary again to decide the question how far the statement, even if presumed to have been made impliedly by the testator in the promissory note Ex. II that he was a major, would be relevant in this case. Let us suppose it to be so. But it loses all its value when we remember that these dealings were started on the security of jewels to which reference has been made in Ex. II-a and Ex. III-a and no loan was given by the Bank to Thangavelu on his personal security. If the loan was being raised by pawning jewels, the attention of the parties cannot be said to have been concentrated on the testator's age but rather on the value of the jewels pledged. We are not in the circumstances impressed by this indirect testimony of Thangavelu's age.
The only other evidence to which our attention was then drawn on behalf of the defendants was that of three withnesses, D.Ws 1, 2 and 3. None of them was related to Thangavelu and since there is no reference to any of them in the lower Court's judgment, it may be safely assumed that no reliance was placed by the trial Court on their evidence. A perusal of their statements does not show what Thangavelu's real age was on the date of the will; and the main object of producing them appears to have been to try and rebut some documentary evidence which was produced on behalf of the plaintiffs to show that Thangavelu was born in January 1911. The statement made by D.W 2 that Thangavelu was aged about 30 or 35 at the time of his death when even according to the defendants' version he was not much more than 21 would show that witness had no idea of his age. The third witness D.W 3 was a servant of Kuppusami; but his statement that Thangavelu was about 6 or 7 when his father died would make out the plaintiffs' version to be the more correct of the two. Thangavelu's father died in January 1917 and if the boy was born in 1911 as alleged on behalf of the plaintiffs, he would be about 6 years of age when his father died. The oral evidence cannot, therefore, render any material assistance to the defendants. In fact one of the witnesses supports the plaintiffs' version. If the whole question had to be decided on the basis of the burden of proof, the defendants should be taken to have failed to discharge the same. It is, however, unnecessary to rest our decision on the onus of proof, as in our opinion, the documentary evidence relied on behalf of the plaintiffs goes to establish the fact that Thangavelu was born in 1911.
The most important document on which reliance was placed in this connection is Ex. F, a Birth Register according to which a male child was born to Venkatachalam Pillai on the 20th January 1911. That Venkatachalam Pillai was the father of the deceased is admitted on behalf of the defendants; and it was sworn by the plaintiffs' father who appeared as P.W 1 that there was no other Venkatachalam Pillai in Vellala Street or in Vuluthur village and nothing has been shown on the other side that this statement was not correct. Reliance was also placed in this connection on certain entries in the school Registers Exs. J, K and K-1; but they were not formally proved and at all events, they do not give the same date as given in the Birth Register Ex, F. Ex. J makes out the boy to have been born in July 1911 while according to Exs. K and K-1 he was born in January 1913. These do not advance the plaintiffs' contention to any material extent but the following statement made by one Vadivelu Pillai supports the plaintiffs' contention substantially. Vadivelu is the first defendant's paternal uncle and was examined in this suit as D.W 8. He made a statement before the Sub-Collector on the 9th August 1928 i.e, just a day prior to Thangavelu's death that he (Thangavelu) was a minor on that date. The witness also stated that, Thangavelu was his sister's son and was married to his brothers's daughter.
When confronted with this statement Vadivelu had to admit that he had made it but he tried to explain it away by saying that he was under the impression that the age of majority was 21 and not 18. This explanation is extremely disingenuous and we have no hesitation in characterising it to be unture. Ordinarily in India a person attains majority at the age of 18 unless a guardian has been appointed for him by the Court. Vadivelu could not have possibly considered Thangavelu's age to be about 21 unless he knew that some guardian was appointed by the Court for his person and property. Nothing has been stated by Vadivelu to show that any such application was ever made. Had it been so, Vadivelu who was a close relation to Thangavelu, would have certainly known of it and would have deposed to it too. In the absence of any such information, the statement by this witness must be taken to have been made with the object of getting out of an inconvenient situation in which he was placed by his deposition before the Sub-Collector.
The next document on which reliance was placed by Mr. Venkatarama Sastriar was a plaint filed on behalf of Thangavelu by his paternal aunt Sornathachi in 1925 in which she described him to be 14 years old. This would be so if he was born in 1911 as shown in Ex. F. It was alleged by P.W 1 in his statement that the 13th defendant i.e, Vadivelu Pillai had secured Sornathachi's mark on the plaint in O.S No. 15 of 1925. This was admitted by Vadivelu Pillai, D.W 8. If found to be relevent, this statement of Thangavelu's age by his paternal aunt would add weight to the evidence adduced on behalf of the plaintiffs. But it was contended on behalf of the respondent in the first instance that Vadivelu Pillai's above admission has to be considered along with his statement that he was not aware that Thangavelu's age was given to be 14 in the plaint, but we are not concerned here with Vadivelu's statement or his knowledge of the contents of the plaint although it is not likely that even he would not have been aware of them, particularly when Thangavelu would have been a major or at all events about to attain majority when this plaint was being prepared. We are really concerned here with the statement made by Sornathachi and this has been proved to have been made by her before her death which occurred in or about 1931. The next contention raised in regard to this statement relates to its relevancy. Mr. Venkatarama Sastriar contends that it would be relevant under S. 32(5) of the Evidence Act. Reliance was placed by him in this connection on a decision by a Division Bench of this Court in the Oriental Government Security Life Assurance Company v. Narasimhachari , where, on a consideration of certain earlier decisions referred to in that judgment, it was held that a statement as to the age of a member of a family made by his sister was admissible after her death, under S. 32(5). This view was followed later on by a Division Bench of the Calcutta High Court in Ram Kishore Sadkhan v. Manindra Mohan Roy (2), where a review was filed and accepted on the ground that the statement by the defendant's deceased aunt of his age contained in an application for the appointment of a guardian would be relevant and was wrongly ruled out of consideration. Since the decision of this case does not depend on the statement made by Sornathachi in the plaint, it is unnecessary for us to consider how far those decisions were right but one cannot help remarking that the language of S. 32(5) of the Indian Evidence Act does appear to us to have been stretched in a manner which may not be fully justifiable. Even if we decide to ignore this evidence and this is all that we could have done if we had held the respondents' contention to prevail, there is other documentary evidence on the record which is sufficient to decide the case.
Having regard to the documentary evidence to which we have already referred, our finding must necessarily be that Thangavelu was born in 1911 and was not therefore a major on the date on which he is said to have executed this will Ex. X and consequently the will Ex. X even if it was otherwise validly executed, must be held to be ineffective on that account. In view of our finding in regard to Thangavelu's age, we do not consider it necessary to go into the question in regard to his sound disposing mind although the fact that he was suffering from cholera and admittedly died within a few hours after the execution of the will would have compelled us to look into evidence of his execution and of his sound disposing mind—if it were necessary to have done so—with greater vigilance than we would have done if this circumstance was non-existent.
We have already remarked in the beginning that it would be futile for us to consider the question of limitation. Since we have abstained from considering the question whether the will Ex. X was a forged document it is useless to decide when the period of limitation would have started or would start even as against the plaintiff who was born when the will was said to have been executed and continues still to be a minor.
On the finding that the will Ex. X was ineffective, it must be held that the suit should have been decreed. The appeal therefore succeeds and is hereby accepted. The plaintiffs will have their costs here and in the Court below from the defendants (one set) to be divided between respondents 1 and 2 according to the value of the property in their possession.
Appeal allowed.
N.R.R