PETITIONER: H. VENKATACHALA IYENGAR Vs. RESPONDENT: B. N. THIMMAJAMMA & OTHERS DATE OF JUDGMENT: 13/11/1958 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SARKAR, A.K. CITATION: 1959 AIR 443 1959 SCR Supl. (1) 426 CITATOR INFO : R 1962 SC 567 (5) F 1964 SC 529 (4) F 1965 SC 354 (9,11) F 1971 SC2236 (5) F 1974 SC1999 (7) F 1977 SC 63 (9) R 1977 SC 74 (10) R 1982 SC 133 (7) RF 1987 SC 767 (2) F 1990 SC 396 (21) E&R 1990 SC1742 (3) ACT: Will-Mode of proof-Onus-Suspicious circumstances-Removal of such suspicion, if part of the initial burden on the propo- under-Indian Evidence Act, 1872 (1 Of 1872), ss. 45, 47, 67, 68--Indian Succession Act, 1925 (XXXIX Of 1925), ss. 59, 63. HEADNOTE: The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by s. 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satis- faction of the Court before the will can be accepted as genuine. If the caveator alleges undue influence, fraud or coercion the onus will be on him to prove the same. Where there are no such pleas but the circumstances give rise to such doubts, it is for the propounder to satisfy the conscience of the Court. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If the propounder takes a prominent part in the execution of the will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed with an open but nevertheless vigilant and cautious mind. Harmes v. Hinkson, (1946) 50 C.W.N. 895, Fulton v. Andrew, (1875) L.R. 7 H.L. 448, Barry v. Butlin, [1838] 2 MOO. P.C. 480, Vallasamy Servai v. Sivaraman Servai, (1929) L.R. 57 I.A. 96 and Sarat Kumar Bibi v. Sakhi Chand, (1928) L. R. 56 1. A. 62, referred to. Case-law discussed. In the instant case the appellant, as the sole executor to a will, brought the suit out of which the appeal arises, for a declaration that the testatrix was the owner of certain properties and was as such entitled to dispose of them by the will and asked for consequential reliefs purporting to give effect to the bequests made by her. It appeared from the evidence that the appellant took a prominent, if not a decisive, part in the execution of the 427 will, which contained substantial bequests in favour of his sons. But there was no evidence to show that the draft was ever approved by the testatrix or that the will was fully read out to her and she knew its contents. The trial court decreed the suit but the High Court dismissed the same. Held, that the High Court was right in setting aside the finding of the trial court that the will had been duly and validly executed. Held further, that the trial court was in error in holding that the proof of signature in the instant case could raise a presumption as to the testator's knowledge of the contents of the will. Surendra Nath Chatterji v. Jahnavi Charan Mukherji, (1928) I.L.R 56 Cal. 390, explained and approved. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.18 of 1955.
Appeal from the judgment and decree dated March 20, 1651, of
the Mysore High Court in R.A. No. 155 of 1947-48, arising
out of the judgment and decree dated December 19, 1947, of
the Court of Sub_Judge, Mysore, in 0. S. Suit No. 44 of
1946-47.
S. K. Venkataranga Iyengar and K. Keshava Iyengar, for the
appellant.
A. V. Viswanatha Sastri and K. R. Choudhry, for
respondent No. 1.
1958. November 13. The Judgment of the Court was delivered
by
GAJENDRAGADKAR, J.-This appeal arises from a suit brought by
the appellant in the court of the Subordinate Judge, Mysore,
as the sole executor of the will alleged to have been
executed by one Lakshmamma on August 22, 1945, (Ex. A). In
this suit the appellant claimed a declaration that the said
Lakshmamma was the owner of the properties mentioned in the
schedule attached to the plaint and as such was entitled to
dispose of them by a will; and be asked for consequential
reliefs purporting to give effect to the bequests made by
the said will. The schedule attached to the plaint
describes the properties covered by the will under five
items. First three items in the schedule refer respectively
to 5, 4 and 4 agricultural lands at Hampapura village,
whereas the fourth item includes
428
9 lands at Arjunahalli village and the last item is.& vacant
site in Hampapura village. According to the plaint, under
the will respondent I was entitled only to a life interest
in items I and 2 and that on her death the said items would
vest in respondents 2 to 4 and respondent 5 respectively.
Since respondent 1 was in possession of all the five items,
the appellant claimed a decree for possession against
respondent 1 in respect of items 3, 4 and 5 and a
declaration that respondent I was to have only a life
interest in items 1 and 2. By his plaint the appellant also
claimed to recover Rs. 2,106 which had been collected by
respondent 1 by way of income from the suit lands and a
further prayer was made for the payment of current mesne
profits by respondent 1.
Before referring to the pleadings of the parties it would be
relevant to mention the material facts in regard to their
relationship which are not in dispute. One Annaji lyengar
who died in July 1903 left behind him his adopted son, the
appellant, and two daughters Gundamma alias Ranganayakamma
who is still alive and Lakshmamma alias Achamma who is
alleged to have executed the will in suit and died
thereafter on September 26, 1945, at Mandya. Respondents 2
to 4 are the sons of the appellant. Lakshmamma was married
to Sadagopalachar who died in December 1908. The couple had
three children, a son named Narayana lyengar who died on
January 14, 1944, without any issue and left behind him his
widow respondent 1 ; and the two remaining children of
Lakshmamma were daughters Thirumalamma and Yadugiramma.
Both of them are dead. Thirumalamma was married to one G.
Parthasarathy lyengar by whom she had a son of weak
intellect, who died pending litigation, and three daughters
Neelu, Jaya and Padmini. Yadugiramma was married to
Kalbagal Garudachar and by him she had a son Narasimha
lyengar, respondent 5, and daughter Lilly. Kalbagal
Garudachar had a son S. G. Kalbagal, (hereinafter described
as Junior Kalbagal) from his first wife. Jaya was married
to Kalbagal Junior. The claim made by the appellant under
the will is resisted by respondent 1.
429
Respondents 2 to 5 have not appeared in the proceedings.
According to the case set out by the appellant in his plaint
Annaji lyengar bad made a gift of properties, items 1 and 2,
in favour jointly of Lakshmamma and Sadagopalachar under a
registered deed of gift on February 16, 1902 (Ex. D). It
was also alleged that the said Annaji lyengar had executed a
will On August 31, 1901, (Ex. B2(a)) under which he had
bequeathed in favour of Lakshmamma and Sadagopalachar hypo-
thecation bonds to the extent of Rs. 10,320 as gift with the
express stipulation that the survivor of the legatees should
take the whole of the bequest by survivorship. The
appellant alleged that Sadagopalachar was a man of very
moderate means and had given up his petty job in the
registration department in order to manage the properties
received by him and his wife from Annaji lyengar. During
the course of the management Sadagopalachar used the cash of
Rs. 10,320 received by bequest under the will of Annaji
lyengar to buy some immoveable properties including items 3
and 4. Since Sadagopalachar pre-deceased his wife
Lakshmamma, all his rights in the properties acquired under
the gift deed as well as those subsequently purchased
devolved on Lakshmamma alone by survivorship. That is how
she became the absolute owner of the said properties.
Alternatively it was alleged by the appellant that even if
survivorship did not apply and so her son Narayana lyengar
acquired interest to half the share in the properties
covered by the gift deed, he had during his lifetime sold
away considerable properties of his father and mother much
above the value of his half share and in consequence the
remaining properties which represent Lakshmamma’s half share
became her absolute properties. On this alternative ground
the absolute title of Lakshmamma with regard to all the
properties in suit was set up. The appellant thus claimed
that Lakshmamma was entitled to make a will and asked -.or a
declaration in that behalf and consequential reliefs so as
to give effect to the terms and dispositions of the will.
According to the appellant the will propounded by him was
430
the last testament of Lakshmamma and it had been a executed
by her voluntarily and of her own free will while she was in
a sound and disposing state of mind.
Respondent I disputed the appellants claim. She denied that
Annaji lyengar had made a will on August 31, 1901, or that
Lakshmamma and Sadagopalachar had received the moveables of
the value of Rs. 10,320 under it. According to her, the
gift deed (Ex. D) did not provide for devolution of
interest by survivorship; she pleaded that Lakshmamma had
transferred all her interests in the properties comprised in
the gift deed in favour of her husband Sadagopalachar who
then became their sole owner. Respondent 1 did not admit
that the properties subsequently purchased by Sadagopalachar
including items 3 to 5 were purchased with any monies
bequeathed to him and his wife by Annaji lyengar; according
to her, Sadagopalachar had made these purchases with his,
own funds. Respondent 1’s case was that, after the death of
his father Sadagopalachar, her husband Narayana lyengar
became the absolute owner of all the properties and so
Lakshmamma was not competent in law to make a will in
respect of any of them. She further alleged that the will
set up by the appellant was not genuine or valid and that at
the material time Lakshmamma was not in a sound and
disposing state of mind. She contended that the will had
been brought into existence through the machinations of the
appellant and she disputed the appellant’s right to bring
the present suit.
On these pleadings the learned trial judge framed fifteen
issues. He found that the will executed by Annaji lyengar
on August 31, 1901, was genuine and valid; and that the rule
of survivorship was applicable as between the legatees inter
se in respect of the properties conveyed by the said will.
It was, however, held that the rule of survivorship did Dot
apply to the properties gifted to Sadagopalachar and
Lakshmamma under Annaji’s deed of gift (Ex. D) which was
held to be genuine and valid. In regard to the properties
subsequently purchased by Sadagopalachar the learned judge
said that ” in fairness to the parties he would
431
like to hold that various survey numbers in items 3 and 4
had been purchased by Sadagopalachar out of the joint income
from the properties bequeathed to him and his wife by Annaji
as also from the properties and through income which he got
at a partition between himself and his coparCeners “.(Ex.
F). The purchases made by Narayana Iyengar were held to
have been made out of the income of the properties of, his
father and of his mother. The learned judge-‘ rejected the
plaintiffs case that Narayana lyengar had disposed of his
properties equivalent to his right under the gift deed of
Annaji (Ex. D) and held that he was the owner of the
properties which had. vested in his father. In the result,
according to the learned judge, Lakshmamma had a half share
in all the properties in suit and so she was competent to
make the will in respect of the said share. The learned
judge then considered the question as to the execution of
the will set up by the appellant and came to the conclusion
that the will (Ex. A) was genuine and valid to the extent
of the share belonging to the testatrix. The learned judge
also found that the suit was maintainable, was not barred by
time and had been properly filed. As a result of these
findings the learned judge declared that Lakshmamma was the
full owner of half the share in the scheduled properties and
that respondent I under the will had only a life interest in
respect of the said half share in items 1 and 2. As a con-
sequence of this declaration the decree passed by the
learned judge directed respondent I to put the appellant in
possession of Lakshmamma’s half share in items 3, 4 and 5;
it also ordered respondent 1 to pay. to the appellant a sum
of Rs. 1,050 out of the past mesne profits recovered by her.
An enquiry into future mesne profits was also directed under
0. XX, r. 12. In view of the fact that the appellant had
succeeded only in regard to half the properties in suit the
decree askEd the parties to bear their own costs.
Against this decree respondent I preferred an appeal in the
High Court of Mysore; and the appellant filed cross
objections. The High Court held that the appellant had not
established that when Lakshmamma was
432
alleged to have executed the will she was in a sound and
disposing state of mind or that it was her will in the sense
that it represented her intentions. According to the High
Court, in the light of this finding ” it might be
unnecessary to consider the other issues in the case”. Even
so the High Court proceeded to indicate its conclusions on
two of such issues. It held that the appellant had
entirely failed to prove that the money for the purchase of
items 3, 4 and 5 came out of any bequest under Annaji’s will
(Ex. B2(a)) or the incomes from the properties covered by
the gift deed (Ex. D) and so in its opinion Lakshmamma
could not claim any share in the said properties. On the
other hand, the High Court indicated that it was inclined to
accept the plea raised by respondent 1 that Lakshmamma had
transferred all her interest in the properties comprised in
the said deed of gift in favour of her husband
Sadagopalachar; and since in its opinion ” Lakshmamms at no
time appears to have claimed that she had any interest in
those properties, there was considerable force in the
argument urged by respondent 1 that LakShmamma must have
relinquished her interest in the said properties and waived
her rights in favour of -her husband “. The High Court
thought that the learned trial judge had not fully
considered all the material bearing on this point and so was
in error in holding that at the relevant date Lakshmamma had
a subsisting interest in half the share even in the suit
properties, items 1 and 2. Having thus indicated its
decision on the two issues the High Court has observed that
even if it had found in favour of the appellant on these two
points it would not have been of any help to him because his
case must inevitably fail when it is held that the will set
up by him was not proved to be the last will and testament
of Lakshmamma. In the result the appeal preferred by
respondent I was allowed, the cross-objections filed by the
appellant were rejected and his suit was dismissed. In the
circumstances of the case the High Court made no orders as
to costs.
The appellant then applied for and obtained a certificate
from the High Court that the decision under
433
appeal is one of reversal and it involves a claim respecting
properties of the value of not less than Rs. 20,000. In
pursuance of this certificate the High Court ordered that
the appeal to this Court should be admitted; and so this
appeal has come to this Court.
Since the main contention raised by the appellant is
directed against the finding of the High Court that the will
in question is not proved to be the last will and, testament
of Lakshmamma, it would be necessary to refer to the broad
features, and dispositions, of the will and the evidence
adduced by the appellant to prove its execution. At the
material time Lakshmamma was about 64 years of age. She
usually resided at Hampapur; but about a month before the
executing of the will she had gone to Mandya to attend the
marriage in the house of Junior Kalbagal. After the
marriage was over she would normally have returned to
Hampapur but she fell ill and had to extend her stay with
Junior Kalbagal. The appellant’s case is that she had told
him that she wanted to execute a will and had given him
instructions in that behalf. This talk had taken place be-
tween her and the appellant about a year before the
execution of the will. The appellant, however, did not find
time to get the will written. When Lakshmamma fell ill at
Mandya the appellant had gone to visit her and she pressed
the appellant to prepare the draft of her will in accordance
with her instructions. So the appellant prepared a draft at
Mysore a day prior to the execution of the will. He then
went to Mandya by. the morning train on August 22, 1945, and
the will was got written about 11 or 11-30 a.m. The
appellant had the draft in his hand from which he dictated
to the scribe Chokkanna (P. W. 3) who wrote the will.
After the will was written the scribe took it to the
adjoining room where Lakshmamma was lying in bed. The will
was then read out to her and was signed by her in five
places (Exs. A-1 to A-5). Subsequently it was attested by
two witnesses Krishnamurthy Rao (P. W. 1) and Narasimha
Iyengar (P. W. 2). Some time later during the course
of the day the Sub-Registrar came to the house of Junior
Kalbagal and in his 55
434
presence the will (Ex. A) was duly registered. On the same
day at about the same time Lakshmamma executed a power of
attorney in favour of the appellant (Ex. EE) and this
document was also duly attested and registered. The
appellant has examined himself (P. W. 7), the two attesting
witnesses (P. W. 1 and P.W. 2), the scribe (P. W. 3) and
Junior Kalbagal (P. W.4) in support of his case that the
will was duly and validly executed by Lakshmamma.
The will is a fairly long document and its English
translation spreads over eight printed pages. Though the
dispositions in the will have occupied a small portion of
the document it contains elaborate arguments in support of
the averment of the testatrix that she was entitled to make
a will in respect of all the properties mentioned in the
will. The will begins with the recital about the illness of
the testatrix and says ” as I have felt in my mind that it
is necessary to mention here certain matters clearly so that
there may not be any kind of obstacles and obstruction at
the instance of any in respect of my purposes coming into
effect after my death I have got them written in detail.”
Then, the will refers to the gift deed executed by Annaji
jointly in favour of the testatrix and her husband
Sadagopalachar as well as to Annaji’s will under which
hypothecation bonds of the value of Rs. 10,000 were
bequeathed to both of them. The will then refers to the
fact that Sadagopalachar was possessed of only a house and a
carriage shed and owned no other ancestral property. Even
the said house was of ” very ancient times and was in a
dilapidated condition “. According to the will
Sadagopalachar held a small government job which he resigned
in order to live in Hampapur and to look after the property
obtained by gift from Annaji. ” It was my opinion “, says
the will, ” that he was probably looking after my share of
the property in addition to his own and was improving the
same. It is but natural to think in this manner mutually in
respect of husband and wife “. Then the will refers to the
subsequent purchase of certain lands and avers that the
amounts received by the couple from Annaji were utilised for
the said
435
purchase. The will then refers to the death of Sadago-
palachar in 1908 and describes the management of the
properties during the lifetime of Narayana lyengar the son
of the testatrix. It says that during Narayanan’s minority
the testatrix sold some properties at the advice and with
the help of her Brother-in-law Srinivasa lyengar for debts ”
without considering whether it was my share or my husband’s
share “; she. also sold gold and diamond ornaments to meet
the urgent needs of the family. After Narayanan became a
major he began to manage the property in constitution with
Srinivasa lyengar. Narayanan wanted to build a house for
residence in Mysore and so he sold some wet lands situated
at Sarvamanya Gaudhanahalli village. Narayanan had no issue
and so he spent generously at the time of the marriage of
the three daughters of his younger sister Thirumalamma.
Besides he got ornaments prepared moderately for all of them
and purchased and gave them as pin money some wet lands
situated at Arjunahalli village. Narayanan purchased and
gave some wet lands at the same village to the son of his
second younger sister Kalbagal Narasimha Iyengar and to
Singamma and Lalithamma. Then the will refers to certain
purchases made by Narayanan and adds that the purchase of
the said lands nominally stands in his name though the right
to the property vested in the testatrix. The will then
states that Narayanan had no issue and so he treated his
younger sister’s children as his own, attended to their
education, marriage and other auspicious functions with
great zeal. Having disposed of his properties for the
benefit of the said children Narayanan considered that since
he was the only son of the testatrix her share of the
property was sufficient for the maintenance of himself and
his wife and so he had no worry on that account. In other
words, the will alleges that as a result of the alienations
made by Narayanan he ceased to have any share in the
properties that remained and in consequence the said
properties belonged exclusively and solely to the testatrix.
Then the will refers to the insurance amount of Rs. 4,000
which was paid to respondent 1 on Narayanan’s death; and
436
in regard to Narayanan’s illness which ultimately resulted
in his death the will adds that the testatrix herself had
provided separate money for his medicinal and family
expenses and that she had given Narayanan Rs. 3,000 which
had been deposited with her Brother-in-law and the Reserve
Bank share of Rs. 500 to enable him to purchase a house at
Mysore. The ,.will then refers to respondent in terms of
affection and states that the testatrix was making a bequest
for life of items I and 2 in her favour in order that she
may lead her life without any difficulty. ,Except me “, says
the will, ” no one has any right whatever to the scheduled
properties. They should go only to those for whom it is
intended here according to my desire after my death but
there is no reason whatsoever for their going to my agnates
or any others. I am at full liberty to make dispositions
hereby according to my desire “.
After making these elaborate averments the will proceeds to
make dispositions of items I to 5. Items I and 2 are given
to respondent for life. ” She shall have no right such as
hypothecation, sale, gift, exchange, etc., of the said
properties nor has she any right whatever to create
liability in any way in favour of others “. After her death
respondents 2 to 4 are given item I and item 2 is bequeathed
to respondent 5. Respondent 5 is described as an heir by the
testatrix after her death and has been authorised to perform
all her ceremonies. Item 3 is bequeathed to respondent 5
and item 4 to respondents 2, 3 and 4. Out of the 15 acres of
land included in item 4, the bequest in regard to 9 acres is
burdened with a charge in favour of certain legacies and
charities mentioned in the will. The recipients of the
legacies who are the relatives of the testatrix are named,
and the charities are also specifically mentioned. Rs. 500
each have to be paid to her eldest daughter’s third daughter
Padminiamma, to her eldest daughter’s son Thirumalachar and
to Sudhakalyani, the daughter of her eldest daughter’s
second daughter Jaya and to Nagendra, son of Neelamma, the
eldest daughter of her eldest daughter. Besides, Rs. 1,000
had to be used for
437
conducting service in the Sannadi of Lakshminarayanaswamy at
Hampapur on the respective dates of death of her husband,
her son and herself. A sum of Rs. 500 has to be endowed for
the Nandadipa service in the name of Narayanan in the
Sannadi of Thirupati Venkataramanaswami, and Rs. 500 for
similar service in the name of Sadagopalachar in the Sannadi
of Channakeshavaswami, Belur, the place of the family in
Hassan District. An amount of Rs. 1,000 has to be utilised
for scholarship to poor students. In all Rs. 5,000 have to
be spent for these legacies and charities. The will directs
that if respondents 2 to 4 fail to make these payments
within three years after the death of the testatrix the
appellant who is appointed the executor under the will
should, after the expiry of the said three years, sell for
reasonable price the lands charged in that behalf and should
pay the full amount realised by such sale to carry out the
aforesaid charitable works and to give effect to the
legacies mentioned in the will. The will then avers that
after her death the document would remain with the appellant
and it adds that the testatrix has not executed any prior
will but that in case any such will has been executed by her
the same stood cancelled by the execution of the present
will. The will then repeats the averment about the title of
the testatrix and states that when Narayana Iyengar was
alive he had sold about 17 acres of land situate at Adagur
and other places for purchasing lands at Arjunahalli village
for his sisters’ children and so the testatrix had full
liberty to make a disposition in respect of the scheduled
properties which were her own. The will also adds that
though the said properties stand in the name of her son and
rent notes in respect of them are similarly executed in
favour of her son that does not affect her title to the said
properties in any way. These are the broad features, and
dispositions, of the will in question.
We would now indicate briefly the evidence led by the
appellant on the question about the valid execution of the
will. We have already mentioned that the two attesting
witnesses, the scribe and the appellant himself have given
evidence in support of the will.
438
Mr. Krishnamurthy Rao (P. W. 1) was a medical officer to
the Mysore Sugar Company, Mandya, and he knew the Junior
Kulbagal who was working as a Cane Superintendent in the
said factory. This witness was called by Kalbagal to attest
the will and so he went to his house and saw that Lakshmamma
was lying in her bed since she had an attack of paralysis on
her left side. According to the witness her mind was clear
and he attested the will after ascertaining from her that
the document had received her approval. The witness was
cross-examined in regard to his statement that he had
treated Lakshmamma and it was brought out in his answers
that though she may have been under his treatment for about
a week he could not say if her name found a place in the
hospital register. He, however, added that even patients
who are treated in their houses would be mentioned in the
hospital ‘register if they come and take medicine from the
hospital. The witness admitted that the will was not
written in his presence and that it was already written
before he went to attest it. When the witness was asked
about the details of his signature on the will he gave ans-
wers which showed that he did not have any clear
recollection as to what happened on that date. First he
stated that he had put one signature but ultimately admitted
that he had signed twice, once while he attested the will
and also when the Sub-Registrar registered it in his
presence. It fact some of his answers suggest that the
witness did not even remember that he was present when the
Sub-Registrar arrived and registered the document. The
witness stated that the will was read in his presence but he
did not know if the whole was read or only a few portions of
it.
The next attesting witness is Narasimha lyengar (P. W. 2).
He was employed in Mandya Sugar Company Distillery.
According to him the will was written in his presence and
Lakshmamma put her signature on it also in his presence. In
cross-examination, however, it appeared that his statement
that he was present when the will was written may not be
accurate. He did not know whether there was any draft
already prepared and he saw none.
439
According to him, after the will was written the appellant
read out the will to Lakshmamma but according to the
appellant the will was read out by the scribe. He stated
that after the will was attested both he and P. W. 1 left
the place but it is clear that P. W. 1 was present at the
time of registration. The witness even did not know whether
Lakshmamma had any attack of paralysis. The evidence of the
scribe (P. W. 3) and of the appellant (P. W. 7) clearly
negatived Mr. Iyengar’s statement that he was present at the
time the will was written. The evidence of both the scribe
and the appellant unmistakably shows that Mr. lyengar was
not present when the will was written.
Chokkanna (P. W. 3) the scribe is a relative of Kulbagal.
The mother of Chokkanna and Kulbagal’s mother are sisters.
He has written the will. According to him Lakshmamma stated
that she wanted to execute a will and that she would agree
to what the appellant would get written. The witness stated
that the will was written according to the dictation of the
appellant in the presence of Lakshmamma. The appellant had
a draft with him. Except the appellant, Lakshmamma and the
scribe none else was present when the will was written. The
attesting witnesses came after the will was written. The
witness then read the will to Lakshmamma who consented to
the recitals and signed it. It may be pointed out that the
account given by the scribe in respect of the writing of the
will is somewhat different from the account given by the
appellant. The -appellant has stated that the will was
written in one room and Lakshmamma was lying in the
adjoining room and it was after the will was written that
the scribe went into the adjoining room and read the will to
her so that the statement of the scribe that the will was
written in the presence of Lakshmamma is not supported by
the appellant. In fact the appellant’s statement is cor-
roborated by the evidence of Junior Kulbagal in this matter.
Mr. Kalbagal (P.W. 4) does not seem to know about the
intention of the testatrix to execute the will. It was when
plaintiff asked him to get some attesting
440
witnesses that he came to know that a will was going to be
executed. He then went and brought P. W. 1 and P. W. 2 for
attestation. This witness admitted that Lakshmamma was ill
and was unable to get up and leave her bed. He heard about
her intention to execute the will about 9 a.m. in the
morning. He was not present when the will was written. He
was, how ever, present when the will was read out by the
scribe to Lakshmamma. His father Kalbagal Garudachar and
his wife Jaya were also present. The witness then stated
that the appellant brought the Sub-Registrar at about 5-30
p. m. and the Sub-Registrar registered the will. It would,
however, appear from the application (Ex. VI) made to the
Sub-Registrar inviting him to come to Kalbagal’s house to
register the will that it was not the appellant but the
witness himself who had brought the Sub-Registrar.
The last witness in support of the will is the appellant
himself, (P.W. 7). He has spoken to the instructions
received by him from Lakshmamma a year before the date of
the execution of the will and he has stated that he prepared
a draft at Mysore a day before the will was executed and
that the will was written by the scribe as he dictated the
contents from the said draft. He had told Lakshmamma about
what the draft contained but he admitted that the draft was
not read out to her. The witness has then referred to the
fact that the will was read out by the scribe to Lakshmamma
and she consented to it, whereupon it was signed by her and
subsequently attested by the two attesting witnesses. Then
the witness refers to the registration of the document at
about 5-30 p.m. On the morning of the day when the will was
executed the witness was told by Lakshmamma that she would
execute a power of attorney though the witness had not asked
for it. A power of attorney was accordingly prepared and
duly executed and registered. That in brief is the evidence
on which the appellant relies.
It would be convenient at this stage to refer briefly to the
reasons given by the courts below in support of their
respective findings. The learned trial judge put the onus
of proving the will on the appellant but
441
he observed that ” the proof that is necessary to establish
a will is not an absolute or a conclusive one. What is
required is only such proof as would satisfy a prudent man:-
The learned judge then considered the evidence of the two
attesting witnesses and the scribe and observed that ” there
can absolutely be no doubt that P.W. 3 wrote Ex. A at the
time when it is said to have been( written “. He was of the
opinion that the evidence of the scribe fully corroborates
the evidence of P. W. I and P. W. 2. The learned judge then
mentioned the fact that P. W. 4 who supported the appellant
is no other than the husband of Lakshmamma’s granddaughter.
The evidence of the appellant himself was considered by the
learned judge and his conclusion was that ” it had to be
taken that Ex. A is a will executed by Lakshmamma and the
signatures, Exs. A – I to A-5 are those of Lakshmamma “.
The argument urged by respondent I that Lakshmamma could not
have understood the contents of Ex. A was rejected by the
learned judge and he observed that ” when it is proved -that
Exs. A-1 to A-5 are signatures of Lakshmamma and that she
executed Ex. A, it is to be presumed that the testatrix had
the knowledge of the contents of the will “. In the end the
learned judge thus recorded his finding: ” In view of the
evidence and the presumption referred to above I think we
deed not have any hesitation in holding that Lakshmamma
executed Ex. A having fully understood the nature of Ex. A
and the recitals made therein “.
The High Court, on the other hand, has taken a contrary
view. The High Court thought that the evidence adduced by
the appellant to prove the execution of the will was not
satisfactory. It then examined the said evidence in some
detail, criticised the discrepancies appearing in the said
evidence, considered the probabilities and concluded that,
on the whole, the said evidence would not justify the
finding that the will had been duly executed by the
testatrix. The High Court also thought that the appellant’s
version about the instructions given by Lakshmamma to him
56
442
in the matter of the execution of the will was highly
improbable; and, according to the High Court, the whole
evidence of the appellant appeared to be unsatisfactory.
The High Court then considered the question of onus and
observed that since the appellant’s sons had received a
substantial benefit under the will and since he had taken a
leading part in its execution, the onus was heavy on him to
remove the suspicions attending the execution of the
document and to establish that Lakshmamma had really
understood its contents, had approved of them and had put
her signatures on it when she was in a sound and disposing
state of mind. It that the High Court also felt that the
dispositions made by the will were unnatural and improbable;
in particular it took the view that since the appellant had
come into the family of Annaji by adoption it was very
unlikely that his sons should have received such a
substantial benefit under the will. In fact the judgment of
the High Court appears to indicate that The High Court was
inclined to hold that the testatrix may not have been in a
sound and disposing state of mind at the material time. It
is on these findingS that the High Court reached its final
conclusion that the appellant had failed to prove the due
and valid execution of the will.
What is the true legal position in the matter of proof of
wills ? It is well-known that the proof of wills presents a
recurring topic for decision in courts and there are a large
number of judicial pronouncements on the subject. The party
propounding a will or otherwise making a claim under a will
is no doubt seeking to prove a document and, in deciding how
it is to be proved, we must inevitably refer to the
statutory provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant for this
purpose. Under s. 67, if a document is alleged to be signed
by any person, the signature of the said person must be
proved to be in his handwriting, and for proving such a
handwriting under ss. 45 and 47 of the Act the opinions of
experts and of persons acquainted with the handwriting of
the person concerned are made relevant. Section 68 deals
with
443
the proof of the execution of the document required by law
to be attested; and it provides that such a document shall
not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution.
These provisions prescribe the requirements and the nature
of proof which must be satisfied by the party who relies on
a document in a court of law. Similarly, ss. 59 and 63 of
the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor,
may dispose of his property by will and the three
illustrations to this section indicate what is meant by the
expression ” a person of sound mind ” in the context.
Section 63 requires that the testator shall sign or affix
his mark to the will or it shall be signed by some other
person in his presence and by his direction and that the
signature or mark shall be so made that it shall appear that
it was intended thereby to give effect to the writing as a
will. This section also requires that the will shall be
attested by two or more witnesses as prescribed. Thus the
question as to whether the will set up by the propounder is
proved to be the last will of the testator has to be decided
in the light of these provisions. Has the testator signed
the will ? Did he understand the nature and effect of the
dispositions in the will ? Did he put his signature to the
will knowing what it contained ? Stated broadly it is the
decision of these questions which determines the nature of
the finding on the question of the proof of wills. It would
prima facie be true to say that the will has to be proved
like any other document except as to the special
requirements of attestation prescribed by s. 63 of the
Indian Succession Act. As in the case of proof of other
documents so in the case of proof of wills it would be idle
to expect proof with mathematical certainty. The test to be
applied would be the usual test of the satisfaction of the,
prudent mind in such matters.
However, there is one important feature which distinguishes
wills from other documents. Unlike other documents the will
speaks from the death of the testator, and so, when it is
propounded or produced
444
before a court, the testator who has already departed the
world cannot say whether it is his will or not ; and this
aspect naturally introduces an element of solemnity in the
decision of the question as to whether the document
-propounded is proved to be the last will and testament of
the departed testator. Even so, in dealing with the proof
of wills the court will start on the same enquiry as in the
case of the proof of documents. The propounder would be
called upon to show by satisfactory evidence that the will
was signed by the testator, that the testator at the
relevant time was in a sound and disposing state of mind,
that he understood the nature and effect of the dispositions
and put his signature to the document of his own free will.
Ordinarily when the evidence adduced in support of the will
is disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator’s mind and his
signature as required by law, courts would be justified in
making a finding in favour of the propounder. In other
words, the onus on the propounder can be taken to be
discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the
will may be surrounded by suspicious circumstances. The
alleged signature of the testator may be very shaky and
doubtful and evidence in support of the propounder’s case
that the signature, in question is the signature of the
testator may not remove the doubt created by the appearance
of the signature; the condition of the testator’s mind may
appear to be very feeble and debilitated; and evidence
adduced may not succeed in removing the legitimate doubt as
to the mental capacity of the testator; the dispositions
made in the will may appear to be unnatural, improbable or
unfair in the light of relevant circumstances; or, the will
may otherwise indicate that the said dispositions may not be
the result of the testator’s free will and mind. In such
cases the court would naturally expect that all legitimate
suspicions should be completely removed before the document
is accepted as the last will of the testator. The presence
of such suspicious circumstances naturally tends to
445
make the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant to
treat the document as the last will of the testator. It is
true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may have to be
proved by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the testator
was acting of his own free will in executing the will, and
in such circumstances, it would be a part of the initial
onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have
just referred, in some cases the wills propounded disclose
another infirmity. PrOpounders themselves take a prominent
part in the execution of the wills which confer on them
substantial benefits. If it is shown that the propounder
has taken a prominent part in the execution of the will and
has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present such
suspicious circumstances that decisions of English courts
often mention the test of the satisfaction of judicial
conscience. It may be that the reference to judicial
conscience in this connection is a heritage from similar
observations made by ecclesiastical courts in England when
they exercised jurisdiction with reference to wills; but any
objection to the use of the word ‘conscience’ in this
context would, in our opinion, be purely technical and
academic, if not pedantic. The test merely emphasizes that,
in determining the question as to whether an instrument
produced before the court is the last will of the testator,
the court is deciding a solemn question and it must be fully
satisfied that it had been validly executed by the testator
who is no longer alive.
It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on
wills, no hard and fast or inflexible rules can
446
be laid down for the appreciation of the evidence. It may,
however, be stated generally that a propounder of the will
has to prove the due and valid execution of the will and
that if there are any suspicious circumstances surrounding
the execution of the will the propounder must remove the
said suspicions from the mind of the court by cogent and
satisfactory evidence. It is hardly necessary to add that
the result of the application of these two general and broad
principles would always depend upon the facts and
circumstances of each case and on the nature and quality of
the evidence adduced by the parties. It is quite true that,
as observed by Lord Du Parcq in Harmes v. Hinkson (1) ”
where a will is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate persistence in
disbelief. They do not demand from the judge, even in
circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close his
mind to the truth “. It would sound platitudinous to say so,
but it is nevertheless true that in discovering truth even
in such cases the judicial mind must always be open though
vigilant, cautious and circumspect.
It is in the light of these general considerations that we
must decide whether the appellant is justified in contending
that the finding of the High Court against him on the
question of the valid execution of the will is justified or
not. It may be conceded in favour of the appellant that his
allegation that Lakshmamma has put her signatures on the
will at five places is proved ; that no doubt is a point in
his favour. It may also be taken as proved that respondent
I has failed to prove that Lakshmamma was unconscious at the
time when the will is alleged to have been executed. It is
true she A, as an old woman of 64 years and had been ailing
for some time before the will was executed. She was not
able to get up and leave the bed. In fact she could sit up
in bed with some difficulty and was so weak that she had to
pass stools in bed. However, the appellant is entitled to
argue that, on the evidence, the sound and disposing
(1) (1946) 50 C.W.N. 895.
447
state of mind of Lakshmamma is proved. Mr Iyengar, for the
appellant, has strongly urged before us that, since these
facts are established, the court must presume the valid
execution of the will and in support of his contention he
has invited our attention to the relevant statements on the
point in the text books dealing with the subject. Jarman on
” Wills ” (1) says that ” the general rule is that the onus
probandi lies in every case upon the party propounding a
will and he must satisfy the conscience of the court that
the instrument so propounded is the last will of a free and
capable testator’.” He adds that, “if a will is rational on
the face of it, and appears to be duly executed, it is
presumed, in the absence of evidence to the contrary, to be
valid.” Similarly, Williams on ” Executors and
Administrators ” (2) has observed that, ” generally
speaking, where there is proof of signature, everything else
is implied till the contrary is proved; and evidence of the
will having been read over to the testator or of
instructions having been given is not necessary.” On the
other hand, Mr. Viswanatha Sastri, for respondent No. 1,
contends that the statements on which the appellant has
relied refer to wills which are free from any suspicions and
they cannot be invoked where the execution of the will is
surrounded by suspicious circumstances. In this connection,
it may be pertinent to point out that, in the same text
books, we find another rule specifically mentioned.”
Although the rule of Roman Law “, it is observed in
Williams, ” that ” Qui se scripsit haeredem ” could take no
benefit under a will does not prevail in the law of England,
yet, where the person who prepares the instrument, or
conducts its execution, is himself benefited by its dis-
positions, that is a circumstance which ought generally to
excite the suspicion of the court, and calls on it to be
vigilant and zealous in examining the evidence in support of
the instrument in favour of which it ought not to pronounce,
unless the suspicion is removed, and
(1) Jarman on ” Wills”–Vol. 1, 8th Ed., P. 50.
(2) Williams on ” Executors and Administrators”–Vol. 1,
13th Ed.,
P. 92.
448
it is judicially satisfied that the paper does express the
true will of the deceased ” (1).
It would, therefore, be necessary at this stage to decide
whether an execution of the will in the present case is
surrounded by any suspicious circumstances. Does the will
appear to be on the whole an improbable, unnatural and
unfair instrument as held by the High Court? That is the
first question which falls to be considered. We have
already indicated that the preamble to the will contains
many argumentative recitals. Indeed it would not be unjust
to say that the preamble purports to meet by anticipation
the main objections which were likely to be raised to the
competence of Lakshmamma to make a will in regard to the
properties covered by it. The preamble in great detail
makes out a case that the properties received by the
testatrix and her husband under the gift deed (Ex. D)
devolved upon her by survivorship after her husband’s death,
a plea which has not been accepted even by the trial court.
It also seeks to prove that the subsequent purchases made by
her husband were in law the joint acquisitions of her
husband and herself, a point on which the two courts below
have differed. It sets out in detail the theory that the
son of the testatrix has lost his right, title and interest
in the properties which devolved on him after his father’s
death because he had alienated more than his share in the
said properties during his lifetime; and it even suggests
that during his illness and to help him to build a house in
Mysore the testatrix had advanced him money from her
separate funds, pleas which have not been accepted by either
court below. It seems to us that the elaborate and well
considered recitals which have been deliberately introduced
in the preamble cannot possibly be the result of
corresponding instructions given by the testatrix to the
appellant for preparing the draft of her will. In the
context these recitals sound artificial and unnatural and
some of them at any rate are untrue. The draftsman of the
will has tried to be overwise’ and that itself is a very
serious infirmity in the appellant’s case that the
(1) Williams on ” Executors and Administrators “, Vol.1,
13th Ed.,
P. 93.
449
instrument represents the last will and testament of the
testatrix. Take for instance the statement in the will that
the testatrix had advanced Rs. 3,000 to her son to enable
him to purchase a house at Mysore. By itself this is not a
matter of very great importance; but this detail has been
introduced in the will in order to make out a strong case
that all the properties mentioned in the will were the
separate properties of the(, testatrix and so it would be
relevant to consider what the appellant himself has to say
about this recital. In regard to the Rs. 3,000 in cross-
examination the appellant has stated that Mr. B. G.
Ramakrishna lyengar had sent this amount to the husband of
respondent 1 in 1942 or so. It was sent by cheque on Mysore
Bank. The appellant then added that the husband of respon-
dent 1 had deposited this amount with B. G. Ramakrishna
Iyengar’s father-in-law after selling Goudanahalli lands
with intent to purchase lands at Mysore; so that the claim
made in the will that the testatrix bad given this amount to
her son out of her separate funds is inaccurate. The manner
in which the several recitals have been made in the will
amounts to a suspicious circumstance which must be
satisfactorily explained by the appellant.
The next circumstance which calls for an explanation is the
exclusion of the grand-children of the testtatrix from any
substantial legacies under the will. It is true that a
bequest of Rs. 500 each is given to them but that can hardly
be regarded as fair or just to these children. It was,
however, urged by Mr. lyengar before us that Narayana
lyengar had, during his lifetime, given lands to his
sister’s daughters. He had also spent considerable amounts
on the occasion of their marriages and had given them each
valuable ornaments. In this connection, he referred us to
certain documents exhibited under Ex. I G’ and attempted to
show that the lands given to his sisters’ daughters were of
the value of Rs. 1,500 to Rs. 2,000 each. Apart from the
fact that the value of these lands is not clearly proved nor
are the circumstances under which they came to be gifted to
the donees, we
57
450
do not think it would be possible to accept the argument
that even with these gifts the testatrix would not have
thought of making more substantial bequests to her grand-
children. It is not suggested -that the relations between
the testatrix and these grand-children were not cordial and
affectionate and so it would be reasonable to assume that
they would have been the objects of her bounties in a more
liberal measure in ordinary circumstances.
There is one more point which must be considered in this
connection. As we have already mentioned the appellant’s
sons have received substantial bounties under the will. Are
these bequests probable and natural ? It must be remembered
that the appellant came into the family of Annaji by
adoption long after the testatrix was married. The record
does not show that the testatrix was on such affectionate
terms with the appellant that she would have preferred to
make a bequest to his sons rather than to her own grand-
children. Indeed the appellant admitted that, at the
relevant time, he was in straightened circumstances and was
indebted to the extent of nearly, Rs. 30,000; and it does
not appear that when he was faced with financial
difficulties of this magnitude he asked for or obtained any
assistance from his adoptive sister. That is why the
bequests to the appellant’s sons also amount to a suspicious
circumstance which must be clearly explained by the
appellant. We cannot easily reject the argument urged on.
behalf of respondent I that the bequests have been made in
the names of the appellant’s sons because, if they had been
made in his own name, the properties bequeathed would have
been attached and sold at the instance of his numerous
creditors. We do not propose to measure precisely the value
of the properties bequeathed to the appellant’s sons. It
would be enough to say that the said bequests are by no
means insignificant or unsubstantial. Therefore, we are
unable to see how the appellant can successfully challenge
the finding of the High Court that some of the broad
features of the will appear to be improbable and unfair; and
if that be so, the appellant will have to remove the
suspicions arising
451
from these features before he can persuade the court to
accept the instrument as the last will and testament
of the testatrix.
In this connection it is necessary to bear in mind that the
appellant whose sons have received the said bequests has
admittedly taken a very prominent part in bringing about the
execution of the will. He has prepared the draft and it was
at his dictation that the scribe wrote the will. Indeed on
the important question as to when and how instructions were
given by the testatrix and whether or not in preparing the
draft those instructions have been faithfully carried out,
the only evidence adduced in the case is that of the
appellant and no one else. Thus, the very important, if not
the decisive, part played by the appellant in the execution
of the will cannot at all be disputed in the present case.
Mr. Iyengar, for the appellant, strenuously contended that,
in deciding whether the suspicions attending the execution
of the will have been removed or not, it would be necessary
to remember that the whole of the relevant evidence is all
one way and there is no evidence in rebuttal led by
respondent 1. His argument is that the evidence adduced by
the appellant is satisfactory and the conclusion of the
trial court which was well-founded need not have been
reversed by the High Court. In support of this argument,
Mr. lyengar referred us to several judicial decisions and
suggested that we should consider the evidence in the light
of these decisions. According to him, these decisions would
afford us considerable assistance and guidance in
appreciating the evidence in the present case. That is why
we would now briefly refer to some of the decisions cited
before us.
According to the decisions in Fulton v. Andrew (1) “those
who take a benefit under a will, and have been instrumental
in preparing or obtaining it, have thrown upon them the onus
of showing the righteousness of the transaction “. ” There
is however no unyielding rule of law (especially where the
ingredient of fraud enters into the case) that, when it has
been
(1) [1875) L.R. 7 H. L- 448.
452
proved that a testator, competent in mind, has had a will
read over to him, and has thereupon executed it, all further
enquiry is shut out “. In this case, the Lord Chancellor,
Lord Cairns, has cited with approval the well-known
observations of Baron Parke in the case of Barry v. Butlin
(1). The two rules of law set out by Baron Parke are: ”
first, that the onus probandi lies in every case upon the
party propounding a will; and lie must satisfy the
conscience of the court that the instrument so propounded is
the last will of a free and capable testator”; “the second
is, that, if a party writes or prepares a will under which
he takes a benefit, that is a circumstance that ought
generally to excite the suspicion of the court and calls
upon it to be vigilant and zealous in examining the evidence
in support of the instrument in favour of which it ought not
to pronounce unless the suspicion is removed, and it is
judicially satisfied that the paper propounded does express
the true will of the deceased “. It is hardly necessary to
add that the statement of these two rules has now attained
the status of a classic on the subject and it is cited by
all text books on wills. The will propounded in this case
was directed to be tried at the Assizes by the Court of
Probate. It was tried on six issues. The first four issues
referred to the sound and disposing state of the testator’s
mind and the fifth to his knowledge and approval of the con-
tents of the will. The sixth was whether the testator knew
and approved of the residuary clause; and by this last
clause the propounders of the will were made the residuary
legatees and were appointed executors. Evidence was led at
the trial and the judge asked the opinion of the jurors on
every one of the issues. The jurors found in favour of the
propounders on the first five issues and in favour of the
opponents oil the sixth. It appears that no leave to set
aside the verdict and enter judgment for the propounders
notwithstanding the verdict on the sixth issue was reserved;
but when the case came before the Court of Probate a rule
was obtained to set aside the verdict generally and have a
new trial or to set aside the verdict on the
(1) [1838] 2 Moo. P.C. 480,482.
453
sixth issue for misdirection. It was in dealing with the
merits of the finding on the sixth issue that the true legal
position came to be considered by the House of Lords. The
result of the decision was that the rule obtained for a new
trial was discharged, the order of the Court of Probate of
the whole will was reversed and the matter was remitted to
the Court of Probate to do what was right with regard to the
qualified pro. bate of the will.
The same principle was emphasized by the Privy Council
in:Vellasawmy Servai v. Sivaraman Servai (1), where it was
held that, where a will is propounded by the chief
beneficiary under it, who has taken a leading part in giving
instructions for its preparation and in procuring its
execution, probate should not be granted unless the evidence
removes suspicion and clearly proves that the testator
approved the will.
In Sarat Kumari Bibi v. Sakhi Chand (2), the Privy Council
made it clear that ” the principle which requires the
propounder to remove suspicions from the mind of the Court
is not confined only to cases where the propounder takes
part in the execution of the will and receives benefit under
it. There may be other suspicious circumstances attending
on the execution of the will and even in such cases it is
the duty of the propounder to remove all clouds and. satisfy
the conscience of the court that the instrument propounded
is the last will of the testator.” This view is supported by
the observations made by Lindley and Davey, L. JJ., in
Tyrrell v. Painton (3). ” The rule in Barry v. Butlin (4),
Fulton v. Andrew (5) and Brown v. Fisher (6), said Lindley,
L. J., ” is not in my mind confined to the single case in
which the will is prepared by or on the instructions of the
person taking large benefits under it but extends to all
cases in which circumstances exist which excite the
suspicions of the court.”
In Rash Mohini Dasi v. Umesh Chunder Biswas
(1) (1929) L.R 57 I.A. 96.
(3) [1894] P. 151, 157, 159.
(5) (1875) L.R. 7 H. L. 448.
(2) (1928) L.R. 56 I.A. 62.
(4) [1838] 2 MOO. P. C. 480, 482.
(6 (1890) 63 L.T. 465.
(7) (1898) L.R. 25 I.A. 109.
454
it appeared that though the will was fairly simple and not
very long the making of it was from first to last the doing
of Khetter, the manager and trusted adviser of the alleged
testator. No previous or independent intention of making a
will was shown and the, evidence that the testator
understood the business in which his adviser engaged him was
not sufficient to justify the-grant of probate. In this
case the application for probate made by the widow of Mohim
Chunder Biswas was opposed on the ground that the testator
was not in a sound and disposing state of mind at the,
material time and he could not have understood the nature
and effect of its contents. The will had been admitted to
the probate by the District Judge but the High Court had
reversed the said order. In confirming the view of the High
Court the Privy Council made the observations to which we
have just referred.
The case of Shama Charn Kundu v. Khettromoni Dasi (1), on
the other hand, was the case of a will the execution of
which was held to be not surrounded by any suspicious
circumstances. Shama Charn, the propounder of the will,
claimed to be the adopted son of the testator. He and three
others were appointed executors of the will. The testator
left no natural son but two daughters and his widow. By his
will the adopted son obtained substantial benefit. The
probate of the will with the exception of the last paragraph
was granted to Shama Charn by the trial judge; but, on
appeal the application for probate was dismissed by the High
Court on the ground that the suspicions attending on the
execution of the will had not been satisfactorily removed by
Shama Charn. The matter was then taken before the Privy
Council; and their Lordships held that, since the adoption
of Shama Charn was proved, the fact that he took part in the
execution of the will and obtained benefit under it cannot
be regarded as a suspicious circumstance so as to attract
the rule laid down by Lindley, L. J., in Tyrrell v. Painton
(2). In Bai Gungabai v. Bhugwandas Valji.(3), the Privy
Council had to deal with a will which was admitted to
probate by the first court, but on appeal
(1) (1899) I.L.R. 27 Cal. 522. (2) [1894] P. 151, 157, 159.
(3) (1905) I.L.R. 29 Bom. 530.
455
the order was varied by excluding therefrom certain passages
which referred to the deed-poll executed on the same day by
the testator and to the remuneration of the solicitor who
prepared the will and was appointed an executor and trustee
thereof. The Privy Council held that ” the onus was on the
solicitor to satisfy the court that the passages omitted
expressed the true will of the deceased and that the court
should be diligent and zealous in examining the evidence in
its support, but that on a consideration of the whole of the
evidence (as to which no rule of law prescribed the
particular kind required) and of the circumstances of the
case the onus was discharged “. In dealing with the question
as to whether the testator was aware that the passages
excluded by the appeal court from the probate formed part of
the instrument, the Privy Council examined the evidence
bearing on the point and the probabilities. In conclusion
their Lordships differed from the view of the appeal court
that there had been a complete failure of the proof that the
deed-poll correctly represented the intentions of the
testator or that he understood or approved of its contents
and so they thought that there were no grounds for excluding
from the probate the passages in the will which referred to
that deed. They, however, observed that it would no doubt
have been more prudent and business-like to have obtained
the services of some independent witnesses who might have
been trusted to see that the testator fully understood what
he was doing and to have secured independent evidence that
clause 26 in particular was called to the testator’s
attention. Even so, their Lordships expressly added that in
coming to the conclusion which they had done they must not
be understood as throwing the slightest doubt on the
principles laid down in Fulton v. Andrew (1) and other
similar cases referred to in the argument.
In Perera v. Perera (2) it was held that when the testator
is of sound mind when he gives instructions for a will but
at the time of signature accepts the instrument drawn in
pursuance thereof without being able
(1) (1875) L.R. 7 H.L. 448. (2) [1901] A.C. 354.
456
to follow its provisions, he must be deemed to be of sound
mind when it is executed. The will of Perera with which the
court was concerned in this case was signed with a cross by
the testator in the presence of five witnesses present at
the same time who duly subscribed the will in the presence
of the testator. The Notary Public was also among the
persons present but he did not attest the will. No
objection was taken in the court of first instance on this
ground, but, in the court of appeal, the said objection was
raised and it was held that the will was invalid on the
ground that though the Notary Public was present he had not
attested the instrument. The case was then taken to the
Supreme Court in its collective capacity on review
preparatory to an appeal to Her Majesty. The Supreme Court
reversed the judgment under appeal and then proceeded to
determine the case on the merits. The court held by a
majority decision that the testator was of sound and
disposing state of mind and restored the order of the
primary judge. Against this decision there was an appeal.
In this case, the evidence about the instructions given by
the testator was very clear; and there was not the slightest
reason for disbelieving the statement of Gooneratne that he
had drawn the will faithfully in accordance with the details
of instructions given to him. The will prepared from the
said instructions seemed to be fair and just disposition of
the testator’s property. There was no concealment about the
preparation of the will. The instructions were given on
June 1 and it was in the evening of June 4 that the will was
brought to the testator for execution. It is on these facts
that it was held, following the observations of Sir James
Hannen in Parker v. Felgate (1) that if a person has given
instructions to a solicitor to make a will and the solicitor
prepares it in accordance with those instructions, all that
is necessary to make it a good will if executed by the
testator is that he should be able to think thus far: ” If I
gave my solicitor instructions to prepare a will making
certain dispositions about my property I have no doubt that
he has given effect to my intention and I
(1) [1883] 8 P.D. 171.
457
accept the document which is put before me as carrying it
out “. We would again like to emphasize that the evidence
about the instructions was very clear and definite in this
case and it was also clearly established that the will which
was just and fair was executed faithfully in accordance with
the said instructions given by the testator. In such a case
whether or not the will should be admitted to probate would
depend upon the opinion which the court may form about the
relevant evidence adduced in support of the will. It would
be difficult to deduce any principle from this decision and
to seek to apply it to other cases without reference to
their facts.
The last case to which reference must be made is the
decision of the Privy Council in Harmes v. Hinkson (1) It
appears that, in this case, the testator George Harmes died
in the city of Regina on April 4, 1941. Two days later Mr.
Hinkson brought to the manager of the Canada Permanent Trust
Company at its office in Regina a document which purported
to be the will of the said Harmes. It was dated April 3,
1941, and named the Trust Company as executor. Under the
will Mr. Hinkson by a devise and bequest of the residue was
to benefit to a sum of more than pound 50,000. Mr. Hinkson
was by profession a barrister and solicitor and had drawn
the will with no witness present until after the body of the
document was complete. Then two nurses were called in to
witness its due execution. The learned judge of the
Surrogate Court, after a lengthy trial affirmed the will and
decreed probate in solemn form. On appeal, by a majority’
decision the order of the trial court was reversed. Then
there was a further appeal to the Supreme Court of Canada.
It was heard by five learned judges. By a majority (Hudson,
J., alone dissenting) the appeal was allowed and the decree
of the Surrogate Court was restored. Against this decision
the appellant obtained special leave to appeal to His
Majesty-in-Council and it was urged on his behalf that,
since the document was charged with suspicion from the
outset, probate
(1) (1946) 50 C.W.N. 895.
58
458
should not have been granted to the respondent Hinkson. The
Privy Council did not accept this contention and dismissed
the appeal. It was in dealing with the appellant’s
contention about the suspicions surrounding the execution of
the will that Lord Du Parcq made the observations which we
have already quoted. Prima facie the facts on which the
appellant relied were strong enough; but the question which
according to their Lordships fell to be decided in the
appeal was whether the learned trial judge’s decision on the
facts was erroneous and so manifestly erroneous that an
appellate court ought to set it aside. Their Lordships then
referred with approval to the principles which had been
frequently enunciated as to the respect which the appellate
court ought to pay to the opinion which a Judge who has
watched and listened to the witness has formed as to their
credibility (Powell v. Streatham ManoR Nursing Home(1).
Their Lordships then briefly referred to the evidence led in
the case and observed that it was impossible for them
judging only from the printed page to decide between the
various opinions of Mr. Hinkson’s character which its
perusal may leave open for acceptance by different minds. In
the result they came to the conclusion in agreement with the
Supreme Court that the trial court’s decision on the facts
must stand. It would thus be noticed that the decision of
the Privy Council proceeded more on the basis that there was
no justification for interfering with a finding of fact
recorded by the trial judge particularly when the said
,finding rested on his appreciation of the evidence given by
several witnesses before him. In this connection it is
significant to note that the allegation of the appellant
that Mr. Hinkson had exercised undue influence on the
testator was repelled by the Privy Council with the
observation that their acceptance of the judge’s findings of
fact leaves them no alternative but to reject it. Thus this
decision merely serves to illustrate the importance which
the Privy Council attached to the finding of fact recorded
by the trial court in this case.
(1) [1935] A.C. 243.
459
It is in the light of these decisions that the appellant
wants us to consider the evidence which he has adduced in
the present case. It would be convenient to begin with the
appellant’s story about the instructions given by the
testatrix for preparing the will. In the plaint the
appellant has referred to the sudden illness of the
testatrix at Mandya and it is alleged that when she took ill
the testatrix sent for him with the obvious intention of
making arrangements regarding her properties. Accordingly
when he met her at Mandya she explained all her intentions
to him in the matter of disposing all her properties and her
rights thereto. In other words, the case made out in the
plaint clearly and specifically is that when the testatrix
was ill at Mandya she sent for the appellant and gave him
instructions for preparing a draft of her will. However,
when the appellant gave evidence he made a material
improvement in his story. According to his evidence, the
appellant had received instructions from the testatrix a
year before the will was actually drafted. It was then that
the testatrix had given him the gift deed (Ex. D) and asked
him to prepare the draft. Consistently with this new
version the appellant has added in his evidence that when he
met her at Mandya during her illness she reminded him that
she had asked him to make a will for quite some time and she
insisted that the draft should be prepared without any
delay. In our opinion, the evidence given by the appellant
on this point is clearly an after-thought and his story that
he had received previous instructions cannot be accepted as
true. Besides, it is somewhat remarkable that, on both the
occasions when the testatrix talked to the appellant and
gave instructions to him no one else was present; and so the
proof of this part of the appellant’s case rests solely on
his own testimony. If the testatrix had really thought of
making a will for over a year before it was actually
executed, it is unlikely that she would not have talked
about it to other relatives including Kalbagal with whom she
was actually staying at the material time.
Then it would be necessary to enquire whether the
460
draft which the appellant prepared was consistent with the
instructions alleged to have been given by the testatrix.
The draft, however, has not been produced in the case on the
plea that it had been destroyed; nor is it specifically
stated by the appellant that this draft was read out fully
to the testatrix before be dictated the contents of the will
to the scribe. Thus even the interested testimony of the
appellant does not show that be obtained approval of the
draft from the testatrix after reading it out fully to her
clause by clause. It is common ground that Mandya where the
testatrix was lying ill is a place where the assistance of
local lawyers would have been easily available; and in
ordinary course the testatrix would have talked to Kalbagal
and the appellant and they would have secured the assistance
of the lawyers for drafting the will; but that is not what
the appellant did. He went to Mysore and if his evidence is
to be believed he prepared the draft without any legal
assistance. Having regard to the nature of the recitals
contained in the will it is not easy to accept this part of
the appellant’s case. Besides, as we have already indi-
cated, we find great difficulty in believing that the
elaborate recitals could have been the result of the
instructions given by the testatrix herself.
It is in the light of these circumstances that the direct
evidence about the execution of the will has to be
considered. The evidence of P. W. I is really inconclusive
on the point about the execution of the will. Apart from
the fact that he had no clear recollection as to what
happened on the day when he attested the will, this witness
has frankly stated that he could not state definitely
whether the whole of the document was read over to the
testatrix before he put the attesting signature; and it was
naturally of very great importance in this case to produce
satisfactory evidence that the will was read out to the
testatrix and she understood the nature and effect of its
contents. On this point even if P.W. I is believed it does
not help the appellant’s case. The evidence of P.W. 2
cannot carry much weight because his main story that he was
present at the time when the will
461
was written is wholly inconsistent with the evidence of P.
Ws. 3, 4 and 7. That leaves the evidence of the scribe and
the appellant himself. The scribe (P.W. 3) is a near
relation of Kalbagal and even he does not at all support the
appellant’s case about previous instruction because,
according to him, the testatrix said that she would agree to
whatever the appellant would get written. The relevant
evidence of this witness is clearly inconsistent with the
appellant’s case about previous instructions and so it would
be difficult to treat the evidence of this witness as suffi-
cient to prove that the testatrix fully understood the
nature of the recitals in the preamble and the effect of the
dispositions before she put her signature to the will. The
evidence of the appellant (P.W. 7) cannot obviously be
useful because it is the evidence of an interested witness
and is besides not very satisfactory. On behalf of the
appellant it was urged before us by Mr. Iyengar that the
evidence of Kalbagal (P. W. 4) is disinterested and so it
should be believed. That also appears to be the view taken
by the trial court. In our opinion, however, it would not
be right or correct to describe Kalbagal as wholly
disinterested. Respondent No. 5 who is the step-brother of
Kalbagal and who stays with him in the same house along with
their father has admittedly received substantial benefit
under the will. If an undivided brother of P.W. 4 has
received this benefit it would not be accurate to say that
the witness is wholly disinterested. Besides, it appears
from the evidence of Kalbagal that he knew nothing about the
execution of the will until the appellant asked him to get
some attesting witnesses for the will. This evidence does
not strike us as natural or probable; but apart from it,
even Kalbagal’s evidence does not show satisfactorily that
the will was read out to the testatrix so as to enable her
to understand its full effect before it was signed by her.
That is the whole of the evidence led by the appellant on
the question of the execution of the will. On this evidence
we are not prepared to hold that the High Court was in error
in coming to the conclusion that it was not shown that the
testatrix fully
462
understood the contents of the will and put her signature on
the instrument intending that the recitals and the
dispositions in the will should be her recitals and
dispositions.
In this connection we would like to add that the learned
trial judge appears to have misdirected himself in law
inasmuch as he thought that the proof of the signature of
the testatrix on the will raised a presumption that the will
had been executed by her. In support of this view the
learned judge has referred to the decision of the Calcutta
High Court in Surendra Nath Chatterji v. Jahnavi Charn
Mukerji (1). In this case no doubt the Calcutta High Court
has held that on the proof of the signature of the deceased
or his acknowledgment that he has signed the will he will be
presumed to have known the provisions of the instrument he
has signed; but Mr. Justice B. B. Ghose, in his judgment,
has also added that the said presumption is liable to be
rebutted by proof of suspicious circumstances and that
undoubtedly is the true legal position. What circumstances
would be regarded as suspicious cannot be precisely defined
or exhaustively enumerated. That inevitably would be a
question of fact in each case. Unfortunately the learned
trial judge did not properly assess the effect of suspicious
circumstances in the present case to which we have already
referred and that has introduced a serious infirmity in his
final conclusion. Incidentally we may also refer to the
fact that the appellant obtained a power of attorney from
the testatrix on the same day ; and that has given rise to
the argument that the appellant was keen on taking
possession and management of the properties under his
control even before the death of the testatrix. There is
also another circumstance which may be mentioned and that is
that the SubRegistrar, in whose presence the document was
registered on the same day, has not been examined though he
was alive at the date of the trial. On these facts then we
are inclined to hold that the High Court was justified in
reversing the finding of the trial court oil the question of
the due and valid execution of the will.
(1) (1928) I.L.R., 56 Cal. 390.
463
Before we part with this case, however, we would like to add
that the High Court was not justified in recording its
findings on two other issues in the present appeal. As we
have already indicated, the High Court itself has observed
that, once it was held that the will had not been proved by
the appellant, no other issue survived for decision. Even
so, the High Court has expressed its conclusions in favour
of res-pondent I on the question about the character of the
subsequent acquisitions of items 3, 4 and 5 and about the
subsisting title of the testatrix in respect of all the
properties covered by the will. Having regard to the
relationship between the parties it is difficult to under-
stand how mere entries in the revenue record made in the
name of Sadagopalachar or the long possession of
Sadagopalachar and, after his death, of Narayana lyengar can
prove the transfer of Lakshmamma’s title or its extinction
by adverse possession respectively. It is apparent that, in
recording these conclusions, the High Court has not fully or
properly considered all the relevant evidence; and
consequently, the reasons given by it are open to serious
challenge on the merits. Indeed Mr. Viswanatha Sastri did
not appear to be inclined to support the said findings. We
do not, however, propose to decide these questions on the
merits because in view of our conclusion on the principal
issue it is unnecessary to consider any other points. We
would, therefore, like to make it clear that the said two
issues are not decided in the present proceedings and may
have to be considered afresh between the parties if and when
they arise.
The result is the appeal fails and must be dismissed but
there will be no order as to costs in this Court.
Appeal dismissed.
464