Case Note & Summary
The case concerned a Hindu male who executed a will three days before his death, bequeathing all his properties absolutely to his mother. In the will, he stated his age as 19 years. The nearest reversioner under the law as it then stood filed a suit seeking a declaration that the will was invalid on the grounds that the testator was a minor at the time of execution and was not in a sound disposing state of mind. The mother, as legatee, contested the suit, asserting in her written statement that the testator was a major and of sound mind. The suit was compromised: the reversioner admitted that the testator was a major, of sound mind, and that the will was valid and genuine. The testator's properties were divided between the reversioner and the legatee, and a decree was passed in terms of the compromise. Thereafter, both parties conducted themselves as absolute owners of their respective shares. The legatee executed settlement deeds in favour of her daughters with respect to a part of the land received by her. The matter eventually reached the Supreme Court, which examined several legal questions relating to evidence and succession. The Court considered the relevancy of the statement as to age made in the will, holding that such a statement falls within Sections 32(5) and (6) of the Indian Evidence Act, 1872, and could be considered in determining the testator's age. It also addressed the admissibility of secondary evidence of the will, wherein a copy of the will was produced and the due execution of the original was proved. The Court held that the contents of the copy could be relied upon once due execution was established, but clarified that the presumption under Section 90 regarding ancient documents applies only to originals, not to copies. Further, the Court discussed the burden of proving due execution of a will, emphasizing that it lies on the person propounding the will. The Court noted that a discrepancy between the body and the schedule of a will does not by itself invalidate the document. Lastly, the Court considered the admissibility of an endorsement on a birth register when the original register was not produced and the writer of the endorsement was not examined, holding that such endorsement is inadmissible in evidence.
Headnote
A) Evidence - Relevancy of Statement as to Age in Will - Sections 32(5) and (6) of Indian Evidence Act, 1872 - A statement as to age made by the testator in his will is relevant under Section 32(5) as a statement of a fact in issue or relevant fact made by a person who is dead and relates to the existence of a relationship, and under Section 32(6) as a statement of a fact as to relationship made in a will, provided it was made before the controversy arose. Held that the statement could be considered when determining the testator's age at the time of execution. (Paras Not mentioned) B) Evidence - Secondary Evidence of Will - Sections 65 and 90 of Indian Evidence Act, 1872 - Where the original will is not produced, a copy may be admitted as secondary evidence if the due execution of the original is proved. The contents of the copy can then be relied upon. However, the presumption under Section 90 regarding ancient documents cannot be drawn with respect to a copy; the presumption is available only for originals. Held that on proof of due execution, the copy's contents become admissible. (Paras Not mentioned) C) Succession - Burden of Proving Due Execution of Will - Indian Evidence Act, 1872 - The burden of proving due execution and attestation of a will lies on the person propounding it. A discrepancy between the body of the will and its schedule does not necessarily invalidate the will; it is a factor to be considered. Held that the propounder must adduce satisfactory evidence to discharge the burden. (Paras Not mentioned) D) Evidence - Admissibility of Endorsement on Birth Register - Indian Evidence Act, 1872 - An endorsement relating to the absence of entries in a birth register is not admissible in evidence when the original register is not produced and the person who made the endorsement is not examined. Held that such endorsement cannot be used to prove the non-existence of an entry. (Paras Not mentioned)
Issue of Consideration
Whether a statement as to age made in a will is relevant under Sections 32(5) and (6) of the Indian Evidence Act, 1872; whether a copy of a will can be admitted as secondary evidence and its contents relied upon when the original's due execution is proved; whether a presumption under Section 90 can be drawn with respect to a copy; on whom the burden of proving due execution of a will lies; the effect of a discrepancy between the body and schedule of a will; and the admissibility of an endorsement on a birth register when the original is not produced and the writer is not examined.
Law Points
- Statement as to age in will relevant under s.32(5)&(6) of Evidence Act
- secondary evidence of will admissible if original proved
- presumption under s.90 not applicable to copy
- burden of proving due execution lies on propounder
- discrepancy between body and schedule does not invalidate will
- endorsement on birth register not admissible if writer not examined
