1. The appellant in this case, claiming to be the nearest agnate, brought a suit to recover the estate of one Kachireddi Balireddi against Sakireddi Peddasubbareddi, now deceased, of whom the present respondents are representatives.
2. The deceased defendant denied that the plaintiff was an agnate of Balireddi and further relied upon a will which the said Balireddi had made in his favour. The plaintiff said that Balireddi had made no such will and further that he was a minor and incapable of making a will.
3. The Subordinate Judge decided that the plaintiff had made out his title as agnate, and that the alleged will was not proved. With regard to the question of the majority or minority of Balireddi he held that the burden of proof was upon the defendant who set up the will, and that that burden had not been discharged.
4. On appeal, the High Court came to the conclusion that the plaintiff had not proved that he was an agnate and was therefore not entitled to maintain the suit.
5. This was enough to dispose of the case ; but the learned judges proceeded to the questions relating to the will, and they found that the will was genuine, but on the other hand they agreed with the Subordinate Judge in holding that the majority of Balireddi was not proved. Therefore, the genuineness of the will was not material The High Court dismissed the suit.
6. The appellant has, if he is to succeed, to prove in the first instance that he was the nearest agnate. If he progresses so far, he has then to meet the contention of the respondents that they can rely upon the will; and their Lordships will proceed to discuss these questions in their logical order. [Their Lordships here discussed those questions and continued :]
7. With regard to the defendant's case under the will, the matter stands in this way. It is useless to enquire whether the High Court was right in saying that the will had been executed, or the Subordinate Judge was right in thinking that it was not shown to be a genuine document. If the deceased was not of age at the time that it was supposed to be made, the defendant's case fails.
8. Now both Courts are in agreement that the majority of the deceased was not proved, and there being considerable evidence both ways, their Lordships would follow their usual rule of not displacing a conclusion of fact upon which both Courts in India had concurred.
9. But, on behalf of the respondents, application had been made for leave to produce further evidence and to put in a register of birth which, if it were a genuine record and related to this particular youth, would be conclusive proof that he was of full age when the will was made. He died on May 25, 1918, and the will is supposed to have been made two days before, on the 23rd. The age of competency is 18, and it is suggested on behalf of the respondents that he was born on April 17, 1899.
10. When the case stood for trial, this issue having been clearly raised, there was produced on behalf of the plaintiff an extract from a register of another village which was said to be that of the birth of this youth there, and at a later date. The names, however, do not wholly correspond and the Subordinate Judge was not able to rely upon it.
11. The defendant produced no certificate, but he put in evidence two applications which he had made to the tahsildar of the district that a search should be made in the birth register of the village in which the deceased lived and died for the years 1898 and 1899 and for copies of the extract, with a further request that if they were not in the office the tahsildar should summon the karnam of the village and get copies.
12. The first of these applications was made on February 17, 1919, and the reply made from the office was that the birth registers were not in the office. A second application for the registers of the three years 1898, 1899 and 1900 was made shortly before October 22, 1920, when again the answer was made that the birth registers of the village for the three years were not in the office. The advisers of the defendant took no further step, and the case went to trial without production on his behalf of any birth register.
13. The defendant gave evidence that he was the village munsif and that he and the karnam used to prepare the registers, sign them and send them to the taluk office, that he himself noted in the register the birth of the deceased and that of one of his own sons, who was born a few days after the deceased. In fact, it was because his own wife was expecting her confinement that he could not have the deceased's mother confined in his house. He further said that he could fix his own son's birth because it was on the anniversary of his father's death. He died shortly after the decision in the Court of first instance. After the case had been heard in the High Court and while the appellant was taking steps to bring his appeal before His Majesty in Council, application was made on behalf of the respondents to the High Court to include in the record what was said to be an extract from the birth register showing that the boy had been born on April 17, 1899, and was consequently of full age. The appellant did not appear upon the application and the order was accordingly made. Thereupon he did take action and filed a counter-petition and affidavit and applied that the original birth register should be sent to England, suggesting that upon inspection it would be found to have been tampered with.
14. The High Court refused to order the original register to be sent, but their Lordships directed it to be brought, and it has been before them.
15. They cannot, however, pronounce any opinion upon its genuineness ex facie. It is a document kept for European months, with the dates of the month written in European figures. In it on the proper dates, April 17 and an early day in May, are found the entries of the two births, while on April 16, there appears another birth which becomes important. The entries were translated to the Board out of the vernacular by the respondents' junior counsel. There is no comment to make upon them; and it being the practice to add up the totals for each month, though there is no special place for this purpose, the addition for April corresponds, three boys and two girls.
16. All that can be said against this is that all three entries appear in blacker ink than other entries, and ink a good deal less faded than one would expect.
17. When, however, application is made at a late stage in the case to put in evidence res noviter ad notitiam perventa, one of the primary duties of the applicant is to show that it was owing to no want of diligence on his part that the matter was not discovered before.
18. Here the respondents are in serious difficulty. The applications made on behalf of their father while he was alive to the tashildar were that he should send certified copies or, if he had not the registers, should send to the karnam and summon him. The answers from the office made no reference to this latter request.
19. Now the defendant said that he and the karnam acted together, made entries, kept the registers and sent them in due course to the tahsildar.
20. If these registers had not been sent, they would still be with him or with the karnam, and he had only to produce them, or, if the latter gave trouble, remind the tahsildar of the second branch of his application.
21. If, on the other hand, he knew that they had been sent to and should be in the tahsildar's office, he would not have let the matter rest, he would have issued a subpoena to the record keeper, a step which did produce the register later, as will be stated, or he would have asked for an enquiry, or with less formality (for all were in the same village) he would have talked to the record keeper.
22. The failure to take any of these steps lends colour to the suggestions made for the appellant, that at that time the register either was silent or had entries made in such obviously new ink that it was too dangerous to produce them, at least, till all other means failed.
23. Then the explanation of the discovery is a strange one. On March 2, 1923 (after the decision in the High Court, but while the present appellant was taking steps to prosecute his appeal to the Privy Council), a suit was brought in the Small Cause District Munsif's Court against the person (his name does not appear) whose birth is apparently recorded the day before the supposed date of the birth of the deceased Balireddi. The suit was on a promissory note, and the defendant pleaded that he was a minor. To prove his majority, a subpoena was issued, the register was forthwith produced, and then the pleader, who happened to be the pleader for the respondents in this cause, saw Balireddi's name and realised its importance. So at least it is said, for the pleader has made no affidavit himself.
24. No strange coincidences do occur, but this is a remarkable one. The appellant says that this suit was a sham one, brought to give a reason for the supposed discovery of the register, and that the parties or several of them are connected with the respondents; and his counsel points to the surprising rapidity with which judgment in it was obtained, if it was a really genuine contested suit.
25. Some explanation also would seem to be required of the contrast between the facility with which the register was acquired in the later case and its non-production on the earlier occasions.
26. The respondents have some answer to this. The first respondent says that the karnam was at enmity with his father, and that the record keeper has been changed, with an innuendo that his predecessor was also faithless in the discharge of his office.
27. These charges and countercharges might have been examined by the judges of the High Court, to whom it appears that some suggestion of an enquiry was made, Their Lordships cannot deal with them adequately on the materials before them.
28. But on the whole the circumstances are so suspicious and the burden on the applicants of showing that their father showed due diligence has been so imperfectly discharged, that their Lordships decided not to admit the document. In these circumstances the genuineness or otherwise of the will of the deceased does not call for decision, and the conclusion is that their Lordships will humbly advise His Majesty that the appeal should be allowed, and the judgment of the Subordinate Judge should be restored with costs here and below.