JUDGMENT
Amberson Marten, Kt., C.J.
1. The plaintiff brings a suit for possession as the widow of one Hanmappa, who died without issue on November 16, 1921. The defendant, who is his nephew, s up a will of November 12, 1921, Exhibit 49.
2. Now, it is clear on the evidence that this nephew, Sheshappa, who is a large beneficiary under the will, had requested the deceased to make such a will several months before his death. According to Sheshappa he did not thereafter ask the deceased to make such a will, but Gadgeppa, a brother of the deceased, came to the deceased’s house a few days before his death and arranged for this will. Gadgeppa also takes a benefit under the alleged will. It is clear on the evidence that it was these two beneficiaries, Sheshappa and Gadgeppa, who were instrumental in getting this will prepared and in procuring the alleged witnesses to attest its execution. The other beneficiary under the will is the plaintiff, who is given a house for her life.
3. Now, under these circumstances the principles of law on which the lower appellate Court ought to have approached the question are set out in Tyrrell v. Painton, [1894] P. 151 where the judgment of their Lordships of the Privy Council in Barry v. Butlin (1838) 2 M.P.C. 480 is cited. I cannot do better than quote what is there said, viz. (p. 482):-
The rules of law according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present Appeal: and they have been acquiesced in on both sides. These rules are two ; the first that the onus probandi lies in every ease 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. 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 jealous 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.
4. It is clear that that rule applies in India. In Bhagirthibai v. Vishwanath (1904) 7 Bom. L.R. 92 a decision of Sir Lawrence Jenkins and Mr. Justice Batchelor, Sir Lawrence Jenkins in the course of his judgment alludes to the ground of suspicion which existed in that particular case having regard to the relation between defendant No. 2 and the testator, and he describes it as a ground of suspicion which demands that the Court should not pronounce in favour of the will unless that suspicion is removed. Then the learned Judge proceeds (p. 93) :-
But this aspect of the case is not touched by the District Judge. Nor does he deal with the question of the relations between the plaintiff’s husband and defendant No. 2 or the suggestion to which the Subordinate Judge gives credit that defendant No. 2 took the foremost part in the preparation of the will.
Now these are important matters for consideration, and as to their relevancy in a case of this kind, we cannot do better than refer to what was said by Lord Justice Lindley in Tyrrell v. Painton in the passage which is cited in Shama Charn Kundu v. Khettromoni Dasi. (1899) I.L.R. 27 Cal. 521, 522
It appears to us that matters standing as they are, the judgment of the District Judge cannot be accepted.
5. In the result, therefore, the decree of the District Judge was reversed and the case sent back on remand.
6. We quite appreciate the distinction which their “Lordships pointed out in Shama Charn Kundu v. Khettromoni Dasi, that the rule in Tyrrell v. Painton does not apply unless the surrounding circumstances excite suspicion. But here, as I have already pointed out, we have a case coming within the second branch of the rule, namely, a party preparing the will under which he takes a benefit. The mere fact that the actual writer of the will was another person is, I think, immaterial. He was acting under the directions of and was called in by Gadgeppa or Sheshappa. Consequently, it was, I think, the same as if Gadgeppa or Sheshappa had actually written the will themselves. Was then the learned District Judge aware, when he decided the present case, of this principle of law ? Or, at any rate, was it so present to his mind that he determined the case in accordance with it ? That seems to me to be the true test. In Tyrrell v. Painton Lord Justice Davey at page 159 says : “The question appears to me to be whether the learned Judge applied his mind to the right issue.” In the case of Bai Monghibai v. Pragji Dayal Hariani, (1925) P.C. Appeal No. 112 of 1923. decided on May 22, 1925 (Unrep.) in which the appellate Court had affirmed my decision as trial Judge, their Lordships of the Privy Council stated:-
A will was propounded. The trial Judge, so far as their Lordships can see after a very careful examination of his judgment, approaching the question with a mind fully open to the suspicious circumstances attending the execution and fully open also to the principles of law in accordance with which it was his duty to try the question, came to the conclusion that the testator was of sound disposing mind when he executed the will, and that it truly was his will. This was his finding of fact and he passed a decree accordingly. On appeal that decree was affirmed. The learned Judges in the High Court reviewed the facts with minds even more alive than the trial Judge’s mind had been to the suspicious circumstances, and, in spite of what has been said without, in their Lordships’ opinion, ignoring any rule of law or misdirecting themselves in any way, and especially so in attaching importance to the fact that the trial Judge had accepted as true the evidence given before him by a solicitor, whose report of the transaction, if it was believed, was sufficient by itself to sustain the grant that had been made.
7. Was then the mind of the learned Judge in the present case fully open to the principles of law in accordance with which it was his duty to try the question ? In my opinion that question should be answered in the negative. The learned Judge has given an extremely brief judgment notwithstanding the detailed and adverse criticism that has been passed upon the evidence in support of the will by the trial Judge. There is nothing here to show that the learned Judge thought that there was anything more in the case than the first rule in Tyrrell v. Painton, [1894] P. 151 viz., that the onus probandi lay upon the party propounding the will. The suspicion referred to in the second rule which requires the Court to be vigilant and jealous in examining the evidence in support of the instrument, is not apparent from the judgment. It is, at any rate, not noticed.
8. It seems to me, therefore, that we are entitled to regard the learned Judge’s judgment as having failed to determine a material issue of law within the meaning of Section 100 of the Civil Procedure Code, and that, accordingly, an appeal lies to us under that section. In this connection, I may refer to the recent amendment of Section 103, which now enables this Court to determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100. Consequently, we are not forced to send the case back for a remand as was done in Bhagirthibai v. Vishwanath. [His Lordship at this point discussed the evidence in the case, and concluded :] I would accordingly allow the appeal and restore the judgment of the Subordinate Judge with costs here and in the lower appellate Court.
Madgavkar, J.
9. I agree. The question in dispute is whether the will set up by the defendant-respondent, Sheshappa, as having been made by the deceased Hanmappa, husband of the plaintiff-appellant Rangava, is genuine and was made by Hanmappa while he was of sound testamentary disposition. The trial Court held that the will was fabricated. The question of testamentary disposition did not remain. The learned District Judge held that the will was genuine, but has recorded no finding on the question of the testamentary disposition of the deceased.
10. It is argued for the respondent that in second appeal it is not open to us to go into the merits ourselves, but under Section 100 of the Code of Civil Procedure we are bound to accept the finding of the learned District Judge. This view I cannot accept for two reasons. Firstly, because of the omission of the finding of the testamentary disposition of the deceased, and, secondly, because of the omission on the part of the learned District Judge to apply the legal principle enunciated in Tyrrell v. Painton that on the facts as admitted for the respondent, not merely did the onus probandi lie upon him, but further he had to displace the definite suspicion against him in the will inasmuch as he was the chief beneficiary, and because, on his own admission, the will had been made in consequence of his personal request to the deceased. Under these circumstances, I am of opinion that, under Section 103 of the Code of Civil Procedure, it is incumbent on us to view the evidence in that light and it is open to us instead of remanding the case to decide the issues omitted by the learned District Judge. [His Lordship examined the evidence in the case and proceeded :]
11. Without adding, therefore, anything more to what has just fallen from the learned Chief Justice, I content myself with concurring with his conclusions that, firstly, it is open to us to decide the issues without a remand to the District Judge and, in this case, to consider the case on the merits; and, secondly, that the conclusion is one against the genuineness of the will. Accordingly, the appeal must be allowed, the order of the lower appellate Court set aside, and the decree of the trial Court restored with costs throughout against the defendant-respondent.
