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

Citation: [1968] 2 S.C.R. 292 · Decided: 21-11-1967 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

KAUDINDI VENKATA SUBBARAJU & ORS. 
v. 
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 
lies-Discrf'pa11C'<' 
b<rween body and schedule-Effcc1 of. 
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. 
A Hindu died bequeaoh1og all hi; properties to his mother absolute!\ 
by a 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 a ~uit 
for a declaration that the will was not valid because it was executed by 
the t~lator \W\en he wa.'i a minor and when be was not in a 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 a major and was in a 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 a major aod was in a 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 a 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 
a 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 a 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 a 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""-'· 
B 
0 
E 
G 
H 
SUEBARAJU v. SUBBARAJU (Shela!, }.) 
~9 3 
A 
sion of the appellants. but the appellants denied the allegation, and the 
respondents, thereupon, relied upon a certified copy of the will prnduced 
from the records of the court filed in the first suit. 
B 
c 
D 
E 
F 
G 
H 
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 a 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 a 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-
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 a presumption arises only in respect of the original 
document and not 

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