Abdur Rahman, J.
1. This appeal arises out of a suit instituted by two plaintiffs, one of whom is a minor, for a declaration that the will, Ex. X alleged to have been executed by one Thangavelu on 10th August 1928 was not executed by him and could not be, at all events, said to have been a valid will as the testator had not attained majority on the date on which the will was said to have been executed and that inasmuch as he (i.e. the testator) was suffering from cholera and died within a few hours of the alleged execution of the will he could not be said to have possessed a sound disposing mind. The will was presented for registration a week after Thangavelu's death by one Kuppusami who was the husband of the testator's sister Rajambal and was ordered to be registered on 4th October 1928 in spite of objections raised by defendant 14 - the elder brother of the present plaintiffs and by one Kandasami. The present suit was instituted on 8th August 1934. The present plaintiffs alleged that they were the nearest heirs to the estate of the late Thangavelu along with their elder brother defendant 14 and were held to be so by the trial Court. Since no objection was raised before us in regard to that finding, it may be taken to be correct. Several defences were raised to the suit, but the three questions in regard to which we have been invited to express our opinion relate to the genuinenesss of the will and to the testator's capacity to execute the same, raised on behalf of the plaintiffs and to limitation raised on behalf of the defendants. The capacity to make the will was attacked both on the ground that the testator was a minor and that he had no sound disposing mind at the time when the will was alleged to have been executed by him. The lower Court came to the conclusion that the suit was barred by limitation and Thangavelu had attained majority before 1928 and possessed a sound disposing mind at the time when the will was executed by him. The suit was therefore dismissed and the plaintiffs have preferred this appeal.
2. Since Article 92, Limitation Act, would only apply if we were invited to give a declaration in regard to the invalidity of the will on the ground of its being a forged one and inasmuch as the will was also being contested as above stated by the plaintiffs on the ground that Thangavelu had no capacity to make the will to which Article 120 and not Article 92, Limitation Act, would apply, we decided in spite of the fact that one of the plaintiffs was a minor, to hear arguments first on the question of his (i.e., Thangavelu's) majority as we felt that if he was found to be a minor on the date of the alleged will, it may be unnecessary for us to decide the remaining questions of forgery, of Thangavelu's sound disposing mind and even of limitation. Although we heard arguments on the other points in the end as well, yet we are of opinion that this case can be finally decided as we anticipated on the question of Thangavelu's majority on the date of the alleged execution of the will. We thus propose to go into that question now.
3. There is not the slightest doubt that in a probate proceeding, if the will was being propounded by the defendants as petitioners, the onus of proving that the testator had the capacity to make a will and was possessed of a sound disposing mind at the time of its execution, would lie on the propounded. The question is whether this rule as to the onus of proof would be affected by the fact that we are not dealing with the will in a probate proceeding or that the validity of the will was being relied upon not by the petitioners, as it would be in the case of a probate proceeding, but by the defendants in the suit. After hearing the learned Counsel for the parties we are of opinion that the onus of proof would not be affected by these facts. It is the defendants who come before the Court with a positive case and although the objection regarding the want of Thangavelu's capacity to make the will was raised in the plaint it was really a denial of a positive allegation which the plaintiffs anticipated would be made by the defendants if they wished to contest the claim. The common law rule of evidence is that the burden of proof lies on the party who asserts the affirmative. The plaintiffs were denying the genuineness and Thangavelu's capacity to make the will. They did not come to Court with a negative allegation which they would have been expected to establish. Had the assertion and proof of a negative fact been essential for their success the onus would have been on them to establish that negative fact. But they were in this case merely traversing an affirmative allegation which they thought would be, and was in fact made on behalf of the defendant. This question was fully considered by a Division Bench of this Court in Krishnamachariar v. Krishnamachariar ('15) 2 A.I.R. 1915 Mad. 815 and we are in respectful agreement with the conclusions contained in that decision. We would therefore hold that the burden of establishing that Thangavelu was a major would lie on the defendants although after the evidence has been led on behalf of the parties as it is in this case it may not be of very great consequence. (Their Lordships went into the evidence relating to the testator's majority and proceeded.)
4. Having regard to the documentary evidence to which we have already referred, our finding must necessarily be that Thangavelu was born in 1911 and was not therefore a major on the date on which he is said to have executed this will Ex. X and consequently the will EX. X even if it was otherwise validly executed, must be held to be ineffective on that account. In view of our finding in regard to Thangavelu's age, we do not consider it necessary to go into the question in regard to his sound disposing mind although the fact that he was suffering from cholera and admittedly died within a few hours after the execution of the will would have compelled us to look into the evidence of his execution and of his sound disposing mind - if it were necessary to have done so - with greater vigilance than we would have done if this circumstance was non-existent.
5. We have already remarked in the beginning that it would be futile for us to consider the question of limitation. Since we have abstained from considering the question whether the will Ex. X was a forged document it is useless to decide when the period of limitation would have started or would start even as against the plaintiff who was born when the will was said to have been executed and continues still to be a minor. On the finding that the will Ex. X was ineffective, it must be held that the suit should have been decreed. The appeal therefore succeeds and is hereby accepted. The plaintiffs will have their costs here and in the Court below from the defendants (one set) to be divided between respondents 1 and 2 according to the value of the property in their possession.