Charles Arnold White, C.J.
1. In this case I propose to deal first with the question of law, that is, can a Hindu minor make a will
2. It was practically conceded by Mr. Ramachandra Aiyar that under the Hindu common law a minor cannot make any disposition of property during his life time. There can I think be no question that this is so. It has been so laid down in various authorities. I need only refer to the passage in Colebrooke's Digest of Hindu Law to which Mr. Srinivasa Aiyangar called our attention this morning. Title II, Chapter 4, Section 23, and Narada Title I, Chapter 2, Section 39. If the law is that a Hindu minor cannot make a valid gift during his life time it is difficult to see on what principle it can be said that he can make a valid disposition of property which is only to take effect after his death. The argument of Mr. Ramachandra Aiyar at any rate the argument which he advanced yesterday as I understood him, was this. The Hindu Wills Act and the Succession Act both enact that a Hindu minor cannot make a will. The question of the capacity of the man who made the will before us is not governed by either the Hindu Wills Act or the Succession Act; there is therefore no express prohibition and it follows that he can make a will. It seems to me it is only necessary to state that proposition in order to show - I won't say its absurdity but its unsoundness. Not only is there no authority in support of the view that a Hindu minor can make a will, but all the cases are the other way. I do not propose to discuss them but I would refer to the case of Subbaraya v. Kondayya (1901) 16 M.L.J. 135 the case of Deharam Buttayya v. Somanchi Seetharamayya (1911) 2 M.W.N. 383 the case of Bhaghirthi Bai v. Visvcmatha Damodar (1904) 7 Bom L.R. 92, the case of Bai Gidab v. Thahur I.L.R. (1912) B. 622 and the case of Hardwar Lal v. Gome I.L.R. (1911) A 525. These are all authorities which hold that a Hindu minor cannot make a will. My rinding with regard to the question of law is that a Hindu minor cannot make a will.
3. Then as to the facts. Before dealing with them it is necessary to determine when would the minority of the man who purported to make this will have terminated? In my opinion the Indian majority Act of 1875 applies to this case. There is a saving clause in Section 2 of the Act dealing with capacity and in that saving clause it is provided that ' nothing in the Act shall affect the capacity of any person to act in certain matters (namely)-marriage, dower, divorce and adoption.' The question of the capacity of a person to make a will is not included in the saving clause. That means - so it seems to me, as a matter of construction--that when a question arises as to the capacity of a parson to make a will on the ground of minority the question as regards the age at which minority ceases is governed by the Indian Majority Act. The point arose in two reported cases and this was the view there taken. See cases reported in Bai Gulab v. Thahur I.L.R. (1912) B. 622 and Hardwar Lal v. Gome I.L.R. (1911) A 525. I think this view is right.
4. We have had considerable discussion with reference to the question as to on whom the burden of proof lay - on the party propounding the will or on the party opposing it. Now, if it was necessary for me to express a final opinion in the matter, I should certainly be inclined to hold that, when the defence of minority is raised, the onus is on the party setting up the will to show that the person who made the will was of full age when he made it. Speaking for myself, I cannot see why the rule which applies in the case of alleged testamentary incapacity by reason of mental deficiency should not apply when the defence is alleged testamentary incapacity by reason of not being of an age at which the law recognises the power of a man to dispose of his property at his death. With regard to the question of onus, where the will is impugned on the ground of testamentary incapacity, I think the law is clear. In Tristram and Coote's Probate Practice on page 407 the learned authors say ' where the defence of incapacity has been pleaded, the burden of proof rests upon those who set up the will' and the authority cited Smee v. Smee (1879) 5 p.d. 84 supports the proposition there laid down. The same view is taken in Ameer Ali and Woodroffe Indian Evidence Act p. 564 and by Sir Lawrence Jenkins in Bhagirathi Bat v. Visvanath Damodar (1904) 7 Bom L.R. 92 although it does not appear that there had been a full discussion of the question. See too Williams on Executors,' 10th Edn. p. 12 under the heading ' Persons incapable from want of discretion.' In Williams on Executors the incapacity from want of discretion, that is the mental deficiency, is placed on the same footing as incapacity on the ground of minority. Eurther, in the Indian Succession Act we find that sound mind and not a minor are bracketed together. So in view of what I have said, if it is necessary to decide this matter, I should be strongly inclined to hold that once the defence of minority is set up, it is for the party propounding the will to prove that the alleged testator was a man of full age. With regard to the cases, which Mr. Ramachendra Aiyar cited, I think they were all cases of contract and in the case of contract, of course if the plea of infancy is set up it is for the party who sets up the plea to prove it. The question of capacity is, as it seems to me, a wholly different matter. However as I have said, I do not think I need express a final opinion as to this because, where we have the whole of the evidence it is not a matter of much importance on whom the onus lies. In this connection I would refer to a recent decision of the Privy Council in Chaudri Mohammad Mehdi Hassan Khan v. Sri Mandir Das (1912) 17 C.W.N. 49.
5. Now as to the evidence in this case: The will by which the deceased sought to leave all his property to his wife--it is stated in the will ' to my wife...aged about 12 years' - is dated 22nd April 1909 and, if, as I hold to be the case, he would not have attained majority until 18 years of age, we have to see whether the evidence shows that he was 18 years of age on the 22nd April 1909. The oral evidence in a case of this sort is not worth much. Then what is the documentary evidence? The plaintiff produced a document which is Exhibit C in the case, which, he says, is the horoscope of the deceased. That is spoken to by his 9th witness. An objection was taken to the evidence of this witness with reference to the horoscope on the ground that the witness was not the writer and that he had no personal knowledge of its correctness. The learned judge does not say how he dealt with the objection, but apparently the document was admitted in evidence. The document states that the deceased was born in November 1890. The will being April 1909 that would make him over 18. The man who made the horoscope is not called, and apparently all the witness says with reference to the horoscope is that the deceased man's natural father gave the horoscope to the deceased man's adoptive father and by some means or other, which are not stated, it got into the possession of the witness. The learned judge seems to think that this horoscope as a niece of evidence is worthless, and I think so too. The witness also states that the deceased was adopted some 10 years ago and that he was in his 12th year at the time of the adoption. So he was 11 at the time of his adoption 10 years ago. That, according to this witness would make him 21. That makes him a good deal older than the horoscope. I do not think the oral testimony of this witness in a matter of this sort unless we have evidence that he had special means of knowledge is worth much. Then there is evidence on behalf of the defendant. We have Exhibit I, which is relied on by the defendant, and that is a will which was executed by one Appalachian the adoptive father of the deceased, on November 4th, 1906. It is spoken to by the 3rd defence witness and he proves the will of 1906. He says in his evidence that he had seen the boy and that he looked about 13 years of age. Now in the will of 1906 the boy is described as 13 ' my adopted son V. Krishnamachari aged about 13' and under the will the boy is the sole legatee. If in 1906 the boy's age was 13, at the date when he purported to make his own will he would be 15J. The 8th witness for the plaintiff says that there was a draft in which the boy's age was given as 16. The draft, however, is not forthcoming, and the 1st witness for the plaintiff does not support the evidence of the 8th witness for the plaintiff in reference to the age being given as 16 in the draft will of Appalachari in 1906. With regard to the question of the admissibility of this document for the purposes of showing the age of the boy when he purported to make a will, I think it is admissible under Section 32 of the Evidence Act. Mr. Ramachandra Aiyar called our attention to the case of Nil-monee Chowdhry v. Mussamat Zuharennissu Khartum (1867) 8 W.R. 371. In that case it was held that incidental recital in a will was not evidence of age. That case was wholly different. In this case it is not ' an incidental statement contained in a recital, but the words are used K for the purpose of describing the adopted son of the testator, who under the testator's will was to be the sole beneficiary. I think w this statement is admissible under Section 32 clauses 5 and 6 of the Evidence Act and under Illustration (I) to that section as an authority in support of this view. I may refer to the cases of Oriental Government Life Assurance Company Ltd. v. Narasimhachari Ramachundra Dutt v Jogeshioar Narain Deo Subramania Chetty v. Doraisinga Tevar, the authorities to which Mr. Srinivasa Aiyangar called - our attention this morning. The suggestion was that it was in the interest of the testator to understate the boy's age and there is some evidence that the boy's conduct was unstatisfactory and it was therefore desirable to understate his age so that he should not dispose of the property until he attained (comparatively speaking) years of discretion, and there was also a proviso to the will that the boy was not to deal with the property which his adoptive father baqueaths to him for 10 years after his minority ceased, excepting by permission of his adoptive father. There is some evidence that it was pointed out to Appalachari that this provision in the will would not stand and it was suggested that therefore it was to his interests to understate the age of the boy. This is nothing more than a conjecture. The. Judge suggests that the explanation is an afterthought and I think he was right. Then as regards the second document (Ex. II) which is relied upon by the defence. That is spoken to by the defence witness No. '2 who is a schoolmaster and Exhibit II is the register which was kept by the witness, which he calls an ' Admission Register' of the pupils in his school. He says that when the deceased was admitted to his school in October 1905, his age was given as 13. First he said that ' Krishnamachari gave his age himself; then he said he could not say who gave him the age, ' the father or guardian generally does. The entry in the Exhibit is my writing'. Apparently it was suggested in the Court below that it has been the practice of boys in this country to understate their ages and that this had some connection with the rule that boys were not allowed to go up for the Matriculation Exmination till they were 15. But if that be so and if the alleged practice is connected with the rule it seems to me to the interest of boys not to understate their age but to over state their age. However this might be, it is a pure matter of conjecture. There is no evidence of any such practice and of course we cannot give serious consideration to a suggestion of that character unsupported by evidence. Now what does Exhibit II show? At the most, to my mind it is a corroborative evidence under Section 157 of the Evidence Act of the statement made by the witness in the box that when the boy entered his school he stated or somebody stated, that his age was 13, and that the witness made an entry in his register in accordance with this statement. Even assuming that it is corroborative evidence--to my mind, it is not evidence to which much weight can attach, and I do not think, speaking for myself, that it carries the case much further. According to the evidence of this witness--the age of the deceased at the time he purported to make a will was 16J. The third document on which the defence relies is Exhibit III which is a certified copy of the death certificate of the deceased. The Register is a public document kept under the provisions of the Madras Act III of '1899 and the certified copy is evidence. See Sections 35 and 82 of the Act. In the certified copy the age of the deceased at the time of his death is given as 16 and tha party who gave the information is stated to be the man who was called as the 9th witness for the plaintiff one Rungachari (or Raghavachari). Now the way this document came to be evidence in this case is a little curious. It is the defendant's document and as far as I can see, none of the defence witnesses speak to it. It was not formally put in by the defence in the course of the hearing, but it was marked apparently as having been put in on the 18th August 1910. On that day the 9th witness for the plaintiff was called, a considerable time after the case for the plaintiff and the defendant had been closed. It would seem that the defendant's vakil, when he was cross-examining this witness, had this document before him. Otherwise it would be difficult to understand why he put the questions which he did to the witness in cross examination. He asked him if he signed his name as Mr. V. Rangachari and asked him if he told the village munsif about the death of the boy. He also asked him whether he ever signed himself as Mr. Rangachari in documents. That for some reason or other, it is difficult to know why, he refrained from putting this certified copy of the death certificate of the deceased to the witness and from asking him in so many words, if he did not give the information to the village munsif which the entry purports to show that this witness gave. The document is not admissible in evidence under Section 145 as it was never put to the witness. But it seems to me, as a certified copy of a public document it is evidence. When the boy died he was stated to be 16. It is moreover important to observe that the man who kept the register was called as 4th witness for the plaintiff. The plaintiff's case befere us now is that the original entry in the original register was tampered with and that the age was altered from 18 or 19 to 16. That is the suggestion before us. But when the plaintiff had the witness in the box who was responsible for keeping the register, he did not venture to ask him whether the original entry had been tampered with. All that there was before the District Judge was the certified copy. On the plaintiff's application an order was made for the protection of the original register. That order was made a year ago and the original register saw the light for the first time, so far as a court of justice is concerned to-day before us. Looking at that register, it is fairly obvious that there has been something in the nature of an alteration of the figure which now appears as 16. I think the register shows that there has been an alteration in the next line. We are asked to hold that this original register was originally, so far as I understand, kept back by the defendant, because, if it had been produced it would either have shown that the age in the original Register was 18 or 19 or that the figure 16 had been substituted for another figure. Speaking for myself, on such flimsy material as this I am certainly not inclined to hold that there has been a conspiracy to which I suppose the plaintiff's 4th witness must have been a party for the alteration of a public document.
6. Taking the evidence as a whole although it may possibly leave room for doubt my view is that it has been shown that the deceased was not a major when he made the will which has been propounded. This being the conclusion at which I have arrived, I hold as a matter of law, that the will is ineffective. I think the Judge was right and that the appeal must be dismissed with costs. The appellant will pay the court fees due to Government which he would have paid if he had not been allowed to appeal as a pauper.
7. Tyabji J. The authorities on pure Hindu Law unaffected by the legislative enactments of British India lay down that if a Hindu 'boy or one who possesses no independence transacts anything it is declared an invalid transaction by persons acquainted with the law.' Narada Ch. I, 39 (Sacred Books of the East vol. XXXIII p. 52) Simiarly in Colebrookes Hindu Law Books (3rd Edn. it is stated from 'Narada :--'What has been given by men agitated with fear, anger, lust or the pain of an incurable disease, or as a bribe or in jest or by mistake, or through any fraudulent practice must be considered as ungiven.
8. So must' anything given by a minor, an idiot, a slave or other person not his own master, a deceased man, one in same or intoxicated, or in consideration of work unperformed.' See also Ibii Book I Ch. V title 187 (Vol. I page 201 of the same edition) where it is laid down on the authority of Katyayana's text:--' On the death of a father his debt shall in no case be paid by his sons incapable from managing or conducting their own affairs; but at their full age of fifteen years they shall pay it in proportion to their shares; otherwise they shall dwell hereafter in a region of horror.
9. As a consequence of this rule of Hindu Law, viz., that, until a Hindu attains full age, he shall be incompetent to perform juristic acts, it has been held that in British India a Hindu cannot maki a will unless he has attained majority under the Indian Majdrity Act, Section 3. Bai Gulab v. Thakore Lal I.L.R. (1912) B. 622 Setaramiah v. Somcmchi Seetharamiah (1911) M.W.N. 383, Hardwari Lal. Gouri (1911) 8 A.L.J. 385 Subbiah v.Kondidh (1905) 16 M.L. J. 135? the reasoning on which the decisions laying down this proposition of law have generally proceeded is that for making a gift the attainment of majority as denned in the Indian Majority Act is necessary andithat the Hindu Law of wills is an extension of the Law of gifts, and that consequently a Hindu who is not competent to make a gift, is not competent to make a will. Hence in the case of a Hindu the age of competence to make a will must be the same as the age of competence to make a gift. It has been argued before us, however, that though the Hindu Law of Wills may have originally been an extension of the law of gifts, the age of competence in regard to the two matters might yet become differentiated in as much as even if we accept that the Hindu Law of gifts has in British India been altered by the operation of the legislative enactments referring thereto, still the Hindu Law of Succession (of which the law of wills forms a part) is specifically required to be enforced in British India and there is nothing in the legislative enactments referring to the law of wills which alters the original Hindu Law in that respect, assuming of course that we are dealing with a case such as the present to which the Hindu Wills Act does not apply. Hence it is argued that the age of testamentary competence under Hindu Law as applicable in British India must be determined irrespectively of all legislative enactments and purely in accordance with the rules of Hindu Law. In support of this argument, the Indian Majority Act, the Indian Contract Act Section 11, the Transfer of Property Act Section 7 Trusts Act. Section 10 and similar provisions in the Succession Act and the Hindu Wills Act have been referred to and it has been pointed out to us that there is an Kr absence of any specific legislative provision fixing the age at which c testamentary competence is attained by a Hindu whose will is not Kr governed by the Hindu Wills Act; and that there is no section c laying down that testamentary capacity is in such a case to be 1 subject to the provisions of Section 3 of the Indian Majority Act. It has been further contended that the provisions of the Indian Majority Act cannot affect any branch of the substantive law but that the true effect of the Indian Majority Act is merely to explain how the other legislative enactments of British India must be interpreted--in other words that the Indian Majority Act must be taken merely as providing a definition of the words ' majority' and ' minority'. The argument was founded on the following considerations. Section 3 of the Indian i Majority Act which has the appearance of being the operative Section of the Act (Section 2 being rather in the nature of a saving clause) does no more than state that n person shall be deemed to have attained majority at 18 or 21 years; again there is an absence of any express legislative provision to the effect that the attainment of majority is necessary for competence to perform all juristic Acts (except such juristic Acts as refer to matters specified in Section 2 of the Indian Majority Act), and at the same time we have the fact that the legislature has deemed it necessary to enact the sections which lay down that in regard to transactions such as contracts and trusts attainment of majority is necessary for giving them validity.
10. It seems to me, however, that in passing the Indian Majority Act it could not have been the intention of the legislature merely to provide definitions of the terms 'majority' and 'minority'. Had that been the case, Section 2 of the said Act would not have provided that nothing contained in the said enactment shall affect the capacity of any person to act in the matters referred to - that such a provision was considered necessary, clearly indicates that the enactment was intended to affect the capacity to act in regard to all other matters notwithstanding that the act contains no affirmative provision to the effect that in all matters not saved by Section 2 a person shall be deemed to have the capacity to act only when he attains majority under Section 3. Again, had the act merely provided definition of terms, Section 11 of the Contract Act would not have been affected by those definitions unless there had been some statutory provision that majority for the purposes of the transactions governed by the Indian Contract Act shall be determined in accordance with the Indian Majority Act and this is not done either by any amendment of the Contract Act, the Majority Act having been passed after the Contract. Act) or by any provision contained in the General Clauses Act. On the Indian Majority Act being enacted, it was evidently assumed that ' the law to which he (viz., the person contracting) is subject' referred to in the Contract Act Section 11 became the law as laid down in the Indian Majority Act. Now it has never been questioned that on the passing of the Indian Majority Act, Section 11 of the Contract Act became subject to the latter Act, and it seems to me to be clear that if this was so, the Indian Majority Act must be taken equally to have altered the Hindu Law of the age of capacity to act in all matters except in those matters which are specifically excepted in Section 2 of the Indian Majority Act. If this is so, then it follows that even where the Hindu Wills Act does not apply, it is necessary for a Hindu to attain majority under the Indian Majority Act, Section 3, before he can validly make a will.
11. I should have had little to add to what has fallen from the learned Chief Justice as regards the facts of this particular case, had I not felt more doubt about the effect of the documents on which the respondent relies considering the manner in which Exhibit III was produced before the Court, the late stage at which it was produced, and that it was not put to the plaintiff's 9th witness, although his cross-examination was evidently based entirely on Exhibit III; taking into consideration all these matters and bearing in mind that the document as it comes before us has the appearance of being tampered with, it seems to me that Exhibit III ought to have very little weight as a piece of evidence.
12. In my view of this case, however, this circumstance ought not to affect our decision and I have come to the same conclusion as the learned Chief Justice as to the result of this appeal because I think that it is for the applicant in probate proceedings to prove that the testator was competent to make the will which is propounded and it seems to me clear that before a person can be considered to be competent to make a will, it must be shown that he is under no disability from unsoundness of mind but also (if and in so far as proof of the fact is necessary under the circumstances of the case) that he is under no disability from minority. There is a dictum of Sir Lawrence Jenkins in Bhagirathi Bai v. Vhhvanath (1904) 7 Bom L.R. 92 which would have been of greater assistance to us in coming to the same conclusion had it not been expressed in a case where the question of minority was not directly concerned and had it not appeared that that learned judge had neither cited to him nor considered any authority on this particular point, which has the appearance of being referred to incidentally. But even with this qualification, it shows that Sir Lawrence Jenkins considered the attainment of the age of majority to be on the same footing, for the purposes of proving the will, as possession of a sound mind. Various text books entitled to considerable weight, on the subject of Probate practice in England have been cited to us and they also proceed on the basis that minority is considered in England in the same light as unsoundness of mind for the purpose of deciding whether the testator was competent to make a valid will. Thus, in Tristram and Coote on Probate Practice, 14th Ed. at pp. 407 and 408, it is laid down that if the defence of incapacity has been pleaded then the burden of proof rests upon those who set up the will, and a reference is later on made by the same authors to the Wills Act in England which permits the plea of minority to be raised in order to establish want of capacity in the testator, (Ibid) page 435. Now these passages show, that in the opinion of the learned authors though as a general rule the propounder of a will is not required or expected to give positive evidence of the testator having attained majority, yet it is in the power of those who contest the validity of a will to challenge the propounder thereof to' prove in all strictness every ingredient making up competence to make a will, including the fact that the testator had attained majority. The authority cited by the learned authors as the basis of this proposition (See Smee v. Smee (1879) 5 P.D. 84 seems to me to support it, and I think that the proposition is grounded on principles which are applicable under the law in British India no less than in England, see also Williams on Executors 10th Edn. Vol. I, page 8 et seq, page 12 and the Encyclopedia of. the Laws of England, Vol. XI page 20 and compare as regards the onus of proof in such a case, Womesh Chandra Bisvas v. Rash Mohini Dassi I.L.R. (1893) C. 279 Oriental Government Assurance Co. v. Narasimhachari I.L.R. (1901) M. 183. and Choudhri Mohamed Mehdi Hassan v. Sri Mandir Das (1912) 17 Cal. W.N. 49. Looked at from this standpoint, we cannot hold that the will in question has been proved or that probate of the will ought to be granted to the applicant. I therefore agree that this appeal should be dismissed with costs.