SWARNA KOTAYYA Vs. KARAMACHETI VARDHANAMMA

JUDGEMENT

(1.) This second appeal arises out of a suit by a reversioner for a declaration that certain alienations made by the 1 defendant, daughter of the last male holder, in favour of her daughter's son are not binding on the plaintiff, now appellant, beyond her life-time. The plaint alleged that the last male holder, Mahadevudu, who was the elder brother of the plaintiff's father, died intestate. In her written statement the 1 defendant set up a will said to have been executed by Mahadevudu in her favour in 1877 and the case turns upon the validity and effect of this instrument. It is in the first place disputed that it is a will and not a gift-deed. Both the Lower Courts have found that it is a will and have applied the presumption permissible under Section 90 of the Evidence Act, relying on that provision to find not only that it is genuine, a finding not now disputed, but also that it was executed by Mahadevudu when in a sound disposing state of mind. Whether Section 90 can be used to support a presumption of this latter character is the next question, and the final matter in controversy is the 1 defendant's claim that under the will she took an absolute estate.

(2.) The document, the nature of which is thus disputed and of which Exhibit I is a copy, was executed on plain paper, a course correct for a will, incorrect for a transfer inter vivos. It is styled a Marana sasanam, a word which is usually translated as "will," but which perhaps more unmistakably than that term connects the execution of the document with the executant's death. Unlike a gift-deed it addresses no transferee in the second person. It states that the executant's properties "have been transferred" to his eldest daughter and proceeds to lav down what she shall do, these instructions appearing to relate to the time when he is gone and she has taken his place. Stress has been laid by the appellant upon the use of the past tense "have been transferred". I do not think that this is necessarily incompatible with the view that the document is to take effect as from the moment of the executant's death. When an English testator writes "I give and bequeath" he does not mean that the words are to operate upon the property at the time of execution of the will. Next, there is the very significant circumstance that the whole estate is transferred, a course not likely to be adopted in the case of a gift, especially a gift to a woman. It is true that no power of revocation is reserved, but it has never been held that the mere absence of an express provision of this nature disproves the testamentary character of a document. In Rajammal V/s. Authiammal (1909) I.L.R. 33 M. 304 : 20 M.L.J. 519 it was found upon an examination of the terms of the deed that it was not revocable in character. Finally there is the circumstance that the document was registered as a will. I do not attach weight to that fact because it shows what the Registrar's opinion was; but it does show what course was adopted by those who must have been conversant with Mahadevudu's intentions. It appears to me that those intentions are clear enough from the several indications which I have enumerated, and I have no hesitation in holding that the document is a will.

(3.) The point next raised is that, granting the document to be a will, and that the Lower Courts were justified in presuming execution and attestation under Section 90 of the Evidence Act, yet the section does not authorise any presumption in favour of the disposing power of the testator. There is upon this point singularly little authority. I do not find any useful analogy furnished by oases such as Ubilack Rai V/s. Dalliad (1878) I.L.K. 3 C. 557 Ramani Kanta Ray v. Bhimnandan Singh (1923) I..L.R. 50 C. 526 and the English case, In re Airey Airey v. Stapleion (1897) 1 Ch. 164, which decides that where a person signs as agent for another the fact of agency cannot be presumed; because it is a fact quite outside and apart from the act of execution. Rather closer comes the decision of an Allahabad Full Bench in Haji Sheikh v. Sukhram Singh (1924) I.L.R. 47 A. 31 (F.B. that when the signature of the executant purports to have been made by the pen of the scribe it may be presumed under Section 90 that the latter was duly authorised to sign for him. Walsh, A.C.J., distinguishes the agency cases referred to above, and with reference to the phrase "duly executed" occurring in the section, says: In our view the expression duly executed must include all the facts which would be necessary in order to establish due execution before a Court by positive evidence, if the obligation of producing positive evidence were not dispensed with by the presumption.