1. In this case the parties will be styled according to their designation in appeal No. 332 of 1920 presented against the decree in O.S. No. 25 of 1919. The plaintiff is the minor natural brother of one Raghavayya who was adopted by one Guruvarayudu and his wife Pitchamma, the 1st defendant. The 2nd defendant is Raghavayya's widow and the 3rd defendant is her father, the 4th defendant being the minor son of the 3rd defendant. This Raghavayya died on the 20th of November, 1915 leaving a Will, Exhibit A, which was executed on the 17th November, 1915 and registered on the 20th. Under this Will he left certain properties to his mother, his wife and his father-in-law respectively and also the family house to the plaintiff and made the plaintiff his residuary legatee. Shortly after his death, disputes arose between the plaintiff's father and guardian and defendants 1 to 3, and a criminal complaint was filed by plaintiff's guardian against defendants 1 and 3 and their gumasta under Section 404 of the Indian Penal Code, on the 6th of March, 1916.
2. Search warrants were issued and a largo quantity of property was found in the 1st defendant's house and also in the house of one Sitamma. This property consisted of cash, jewels, house-hold utensils, promissory-notes and account-books and other papers. When Sitamma was examined she said that the property so found did not belong to her but had been deposited with her by the 1st defendant for safe custody and among the properties found in Sitamma's house were a number of promissory-notes executed in favour of the testator Raghavayya. No satisfactory explanation has been given as to why these properties were secreted in Sitamma's house and it can only have been with a view to evade the claims of the plaintiff who was entitled to the property under Raghavayya's Will.
3. The Criminal case was eventually dismissed and the properties found at the search were returned either to the defendants or to their agent. Subsequently there seems to have been some mediation, but in 1917 a notice was sent on behalf of the plaintiff to the defendants claiming the testator's property and, finally, in November, 1918, these three suits were filed.
4. The plaintiff sues to recover the properties specified in his plaint schedules from the defendants, whereas the 1st defendant and the 2nd defendant have each filed a suit for the recovery of the legacy of Rs. 4,000 left to her by Raghavayya's Will. The minor plaintiff starts at soma disadvantage because the defendants 1 to 3 have been residing in the testator's house since his death and were in possession of his properties from the time of his death.
5. The testator besides owning considerable immovable property had money-lending dealings and, according to the plaintiff, left outstandings of the value of Rs. 80,000, whereas the 3rd defendant only admits outstandings of Rs. 20,000.
6. Admittedly, the plaintiff has obtained possession of the immovable property and a considerable part of the promissory notes, etc., left by his brother, and he now brings this suit for certain specified movables detailed in Schedule A to the plaint for the promissory-notes specified in Schedule B, and also for the family house Schedule C.
7. Before dealing with the first two Schedules. I will deal with the third Schedule C. The house referred to was given to the 1st defendant by her husband under Exhibit I in 1907, but in his Will Raghavayya leaves expressly this to the plaintiff. No doubt later on in the Will he does say that, 'defendants 1 to 3 shall enjoy the property as mentioned above after deducting the property executed and registered by my father in favour of my mother.' It is contended for the 1st defendant that this clause nullifies the express device of the family house to the plaintiff.
8. It is, however clear that the bequest to the plaintiff is expressed in unambiguous terms, whereas the restriction mentioned afterwards would seem to refer to a certain site specifically mentioned in the previous clause which was also included in the gift-deed, Exhibit I and, consequently there is no occasion to apply the principle that the later clause of a Will should have preference over the earlier, for in this case the earlier clause is clear and unambiguous, whereas the later is ambiguous and can be read in such a manner as not to interfere with the earlier one.
9. I, therefore, think that the Subordinate Judge was right in holding that this house was devised to the plaintiff. The testator had no right to make this devise as the property really belonged to his mother, but he has made a devise of Rs. 4,000 in favour of his mother.
10. If, therefore, the mother wishes to receive the legacy of Rs. 4,000 she is bound to acquiesce in the device of the family house. She has chosen to retain the house by virtue of her own title and, (therefore, under the doctrine of election (she is not entitled to the legacy under the Will. This disposes of appeal No. 156 which must be dismissed with costs.
11. Appeal No. 157 relates only to the question of interest. Raghavayya's minor wife, the 2nd defendant, obtained a decree in the lower Court for the payment to her of the legacy of Rs. 4,000 but interest was disallowed on the ground that no provision for interest was made in the Will and that, in view of the conduct of the defendants interest could not be equitably awarded as damages. Section 128 of the Probate and Administration Act prescribes that 'the legatee of a specific legacy is entitled to the clear produce thereof, if any, from the testator's death,' and Section 130 states that, 'where no time has been fixed for the payment of a general legacy, interest begins to run from the expiration of one year from the testator's death.'
12. In the present case the legacy is a demonstrative legacy and has been directed to be paid out of certain specified property and the Probate and Administration Act, mates no specific provision for the payment of interest on demonstrative legacies. In England, however, it has always been held that demonstrative legacies, like general legacies bear interest from one year after the testator's death, and this law has been applied in this Presidency in Chinnam Rajamannar v. Tadikonda Ramachandra Rao (1906) 22 Mad. 155.
13. It is argued that, as the Indian Act makes no provision for interest on demonstrative legacies, it must be deemed to have excluded them from the provisions as to payment of interest on general legacies and that, as the law has been codified by the Probate and Administration Act, it is not open to the Courts in India to apply the provisions of the English Common Law. A demonstrative legacy partakes partly of the nature of a specific legacy and partly of a general legacy and in legacies of both these kinds, provision is made either for payment of interest or for the receipt of the produce of the legacy. It is possible that, in some cases, hardship would be entailed upon the executor in being compelled to pay interest on a demonstrative legacy when the fund out of which it has to be paid does not come into his hands for some years after the testator's death, but these cases would be exceptional and I am not prepared to say that the decision in Chinnam Rajamannar v. Tadikonda Ramachandra Rao (1906) 29 Mad. 155 , is wrong and would, therefore, adopt it.
14. Appeal No. 157 must, therefore, be allowed with proportionate costs in so far as interest from one year after the date of the testator's death is concerned.
15. I will now proceed to deal with the main appeal by the plaintiff in O.S. No. 25 of 1919. He has obtained a decree for part of item 1, item 2, part of items 4 to 10 and such of the items 11 to 53 as have been admitted by the 1st defendant and also for item 15 in Schedule B, and the rest of his claim has been dismissed. This appeal relates to the items disallowed.
16. Before dealing with the evidence in the case, I may make a few remarks on the question of the amount of proof which should be required from either party. It is quite clear that defendants 1 and 3 seized a large portion of the testator's estate and attempted to make away with it. It is also clear that the property which was seized at the time of the criminal case was handed back to their possession and it is incumbent on them to show what has happened to the property in their hands. Among the properties so handed back were six bound account-books and a number of cadjan accounts, but neither these nor any other accounts have been produced in this suit.
17. It is admitted by plaintiff's guardian as P.W. 3 that the bound account books did not contain the latest account of Raghavayya but it is, however, possible that they would contain information which would satisfactorily establish the details of the property of which the testator died possessed. The only witness examined for the defendants is the 3rd defendant himself and he has not attempted to explain the non-production of these accounts; in fact, he states that the testator's father who is his own father-in-law never kept any accounts, and would have it that the testator had no accounts to show what his estate was. Apart from the fact that certain accounts were found at the search, we have the recital in Exhibit M(18), a promissory note executed to the 1st defendant in renewal of a note executed in favour of her son Raghavayya, that the amount was made up of an amount due according to the subsequent rough books.
18. This recital shows clearly that Raghavayya did keep some accounts and it is also shown by the finding of account-books and cadjan accounts at the search. The 1st defendant has not chosen to go into the witness-box, whereas the plaintiff has been called upon to prove beyond doubt each and every item of property which he claims : and the Subordinate Judge has not dealt with the evidence in the case as if the burden of proof was wholly on the plaintiff but has not attached any weight to the inference to be drawn from the non-production of the accounts by the 3rd defendant and the absence of any independent evidence on his behalf.
19. Considering, the conduct of defendants 1 and 3 and the suppression by them of the testator's accounts, I think it is not necessary that the plaintiff should prove each item he claims beyond the possibility of doubt, but that, if he adduces a prima facie case of the existence of certain property, the burden is cast upon the defendants to show that property, did not belong to Raghavayya or has been subsequently accounted for. [His Lordship then dealt with the items and modified the decree of the lower Court and dismissed the memorandum of objection with costs.]
Venkatasubba Rao, J.
20. I agree.