Lord Phillimore.-

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.

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 such will and further that he was a minor and incapable of making a will.

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.

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.

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.

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.

The plaintiff's case is that he had a grandfather named Kachireddi Bangarureddi, who married one Akkamma and had three sons, Subbareddi, Seshireddi and Balasubbareddi; that he is the son of the last named, while the deceased was the great-grandson of Subbareddi and therefore the great-great-grandson of Bangarureddi. The descent of the plaintiff and his relationship to Seshireddi are admitted, and the descent of the deceased from Subbareddi is admitted; but it is denied that Subbareddi was the son of Bangarureddi, the case for the defendant being that the father of Subbareddi, who would be the deceased's great-great-grandfather, was one Venkatareddi. The deceased, who, whether major or minor, was certainly young, had been brought up since his father's and mother's death in the house of the defendant, who was his maternal uncle and would therefore have no claim to succeed to his property unless, as he alleged, a will had been made in his favour. Much oral evidence was given on both sides, but the only written evidence consisted in documents relating to certain properties. The deceased died on the 25th May 1918, and the suit was brought on the 18th November following. Previously to this there had been a dispute as to the guardianship of the deceased, both the plaintiff and defendant applying, the plaintiff then alleging that he was the nearest agnate and the defendant then denying this. In the event, the Judge who tried this matter appears to have come to the conclusion that neither was a fit guardian and made no order, and the defendant remained de facto guardian. The plaintiff, who was 60 years old when he gave his evidence, had the opportunity of recollecting the family for some time back. In the opinion of the Subordinate Judge, who heard him,

he gave his evidence about the relationship and division and enjoyment of properties in a straightforward manner, and it left a favourable impression in my mind that his evidence about plaint relationship was true.

A point was made against the plaintiff that he at first said that his father had no sisters, and then on second thoughts said that he had one named Pullamma, but denied that there was another sister named Guramma.

Now, upon the defendant's story, Guramma was the sister of the deceased grandfather and would therefore be, if the two families were related, th