A will is valid if it is duly executed and attested, and if the testator is in a sound disposing state of mind.

BHIMASANKARAM, J. : -

This appeal is by the defendants three in number in original suit No. 21 of 1952 on the file of the Subordinate Judges Court, Guntur. The 1st defendant is the father and defendants 2 and 3 are his sons. The suit was instituted by 5 plaintiffs who are respondents here and they are the daughters of the 1st defendant by his wife late China Annamma, who was also the mother of the defendants 2 and 3. The plaintiffs claimed recovery of possession of the properties described in the plaint A to C schedules and past and future profits.

Their claim was based upon the allegation that these properties formed part of the estate of their deceased maternal grand-father one Makkena Papayya and upon the further allegation that their mother China Annamma became entitled to them absolutely under the last will and testament dated 26-4-1916 of Papayya. They stated that under the law they were the heirs to the streedhana of their mother and thus entitled to the suit property. They seek recovery of possession of the property from their father and brothers who were in management of the property on behalf of their mother until her death on 10-5-1945.

2. In their written statement, the defendants stated that they were not aware of the truth or other wise of the will referred to in the plaint and set up rather inconsistently a family arrangement whereby China Annamma directed that the properties were to be enjoyed by her sons and not by her daughters. According to them, when they disputed certain alienations made by China Annamma of properties which she had obtained from her father, the dispute was settled in the presence of mediators by the aforesaid arrangement which provided also that the defendants 2 and 3 should not question the alienations made by then by Chinna Annamma and that having regard to the fact that the 1st defendant had married and made suitable provision for the daughters out of his own properties, the sons should get their maternal grandfathers properties.

3. The principal questions that arose for determination at the trial were the following :

(1) Whether the will of Papayya set up by the plaintiffs was true and valid? and

(2) Whether the arrangement pleaded by the defendants was true and binding upon the plaintiffs? There was also a minor issue as regards the quantum of mesne profits to which reference will be made at the end of the judgment.

4. The trial Court found that the will of Papayya set up by the plaintiffs was true and valid. It also found that the arrangement pleaded by the defendants was not true. On those findings, it gave the plaintiffs a decree for possession. It determined the amount of mesne profits payable as Rs.1,250/-. 5. On this appeal, Mr. C.V. Narasimha Rao, learned counsel for the appellants has raised the following contentions :

6. In the first place, he contended that the will of Papayya has not been duly proved. He argued that there is no proof (1) that Papayya signed the documents, (2) that the document was duly attested, and (3) that Papayya executed it in a sound disposing state of mind.

7. It is to be noted that at the trial what was produced was not the original of the will but a certified copy of the same marked as Ex. A-10. The original was stated to have been lost while in the custody of P.W. 10 (Kondaveeti Nayudamma) the husband of Papayyas last daughter, Chiimamma. It is pointed out that although Ex. A-10 is a certified copy of a document more than 30 years old, the presumption available under S. 90 of the Evidence Act cannot be raised with respect to the original, because the original itself is not produced.

8. In Basant Singh v. Brij Raj Saran Singh, ILR 57 All 494 : (AIR 1935 PC 132) (A), their Lordships of the Privy Council overruled the view taken in Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno, ILR 5 Cal 886 (B). Ishri Prasad Singh v. Lalli Jas Kunwar, ILR 22 All 294 (C) and Dwarka Singh v. Ramanand Upadhia, ILR 41 All 592 : (AIR 1919 All 232) (D), that S.