{"id":14834,"date":"1958-11-13T00:00:00","date_gmt":"1958-11-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-venkatachala-iyengar-vs-b-n-thimmajamma-others-on-13-november-1958"},"modified":"2016-07-20T01:23:03","modified_gmt":"2016-07-19T19:53:03","slug":"h-venkatachala-iyengar-vs-b-n-thimmajamma-others-on-13-november-1958","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-venkatachala-iyengar-vs-b-n-thimmajamma-others-on-13-november-1958","title":{"rendered":"H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958"},"content":{"rendered":"
Supreme Court of India<\/div>\n
H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958<\/div>\n
Equivalent citations: 1959 AIR 443, \t\t 1959 SCR Supl. (1) 426<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B.<\/div>\n
           PETITIONER:\nH. VENKATACHALA IYENGAR\n\n\tVs.\n\nRESPONDENT:\nB. N. THIMMAJAMMA & OTHERS\n\nDATE OF JUDGMENT:\n13\/11\/1958\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nAIYYAR, T.L. VENKATARAMA\nSARKAR, A.K.\n\nCITATION:\n 1959 AIR  443\t\t  1959 SCR  Supl. (1) 426\n CITATOR INFO :\n R\t    1962 SC 567\t (5)\n F\t    1964 SC 529\t (4)\n F\t    1965 SC 354\t (9,11)\n F\t    1971 SC2236\t (5)\n F\t    1974 SC1999\t (7)\n F\t    1977 SC  63\t (9)\n R\t    1977 SC  74\t (10)\n R\t    1982 SC 133\t (7)\n RF\t    1987 SC 767\t (2)\n F\t    1990 SC 396\t (21)\n E&R\t    1990 SC1742\t (3)\n\n\nACT:\nWill-Mode of proof-Onus-Suspicious circumstances-Removal  of\nsuch suspicion, if part of the initial burden on the  propo-\nunder-Indian Evidence Act, 1872 (1 Of 1872), ss. 45, 47, 67,\n68--Indian Succession Act, 1925 (XXXIX Of 1925), ss. 59, 63.\n\n\n\nHEADNOTE:\nThe  mode of proving a will does not ordinarily differ\tfrom\nthat of proving any other document except as to the  special\nrequirement of attestation prescribed in the case of a\twill\nby s. 63 of the Indian Succession Act.\tProof in either case\ncannot be mathematically precise and certain and so the test\nshould\tbe  one of satisfaction of a prudent  mind  in\tsuch\nmatters.  The onus must be on the propounder and in  absence\nof suspicious circumstances surrounding the execution of the\nwill,  proof of testamentary capacity and signature  of\t the\ntestator  as required by law may be sufficient to  discharge\nthe onus.\nWhere, however, there are suspicious circumstances, the onus\nwould  be  on the propounder to explain them to\t the  satis-\nfaction\t of  the Court before the will can  be\taccepted  as\ngenuine.  If the caveator alleges undue influence, fraud  or\ncoercion  the onus will be on him to prove the same.   Where\nthere  are no such pleas but the circumstances give rise  to\nsuch  doubts,  it  is  for the\tpropounder  to\tsatisfy\t the\nconscience of the Court.\nWhat  are  suspicious circumstances must be  judged  in\t the\nfacts  and  circumstances of each particular case.   If\t the\npropounder  takes a prominent part in the execution  of\t the\nwill which confers substantial benefits on him, that  itself\nis a suspicious circumstance attending the execution of\t the\nwill  and in appreciating the evidence in such a  case,\t the\ncourt should proceed with an open but nevertheless  vigilant\nand cautious mind.\nHarmes\tv. Hinkson, (1946) 50 C.W.N. 895, Fulton v.  Andrew,\n(1875) L.R. 7 H.L. 448, Barry v. Butlin, [1838] 2 MOO.\tP.C.\n480,  Vallasamy Servai v. Sivaraman Servai, (1929)  L.R.  57\nI.A. 96 and Sarat Kumar Bibi v. Sakhi Chand, (1928) L. R. 56\n1. A. 62, referred to.\nCase-law discussed.\nIn the instant case the appellant, as the sole executor to a\nwill, brought the suit out of which the appeal arises, for a\ndeclaration  that  the testatrix was the  owner\t of  certain\nproperties  and was as such entitled to dispose of  them  by\nthe  will and asked for consequential reliefs purporting  to\ngive  effect to the bequests made by her.  It appeared\tfrom\nthe  evidence that the appellant took a prominent, if not  a\ndecisive, part in the execution of the\n427\nwill, which contained substantial bequests in favour of\t his\nsons.  But there was no evidence to show that the draft\t was\never  approved by the testatrix or that the will  was  fully\nread out to her and she knew its contents.  The trial  court\ndecreed the suit but the High Court dismissed the same.\nHeld,  that  the High Court was right in setting  aside\t the\nfinding\t of the trial court that the will had been duly\t and\nvalidly executed.\nHeld  further, that the trial court was in error in  holding\nthat the proof of signature in the instant case could  raise\na presumption as to the testator's knowledge of the contents\nof the will.\nSurendra  Nath Chatterji v. Jahnavi Charan Mukherji,  (1928)\nI.L.R 56 Cal. 390, explained and approved.\n\n\n\nJUDGMENT:\n<\/pre>\n
   CIVIL APPELLATE JURISDICTION: Civil Appeal No.18 of 1955.
\nAppeal from the judgment and decree dated March 20, 1651, of
\nthe  Mysore High Court in R.A. No. 155 of  1947-48,  arising
\nout  of the judgment and decree dated December 19, 1947,  of
\nthe  Court  of Sub_Judge, Mysore, in 0. S. Suit\t No.  44  of
\n1946-47.\n<\/p>\n
S.   K. Venkataranga Iyengar and K. Keshava Iyengar, for the
\nappellant.\n<\/p>\n
A.   V. Viswanatha Sastri and K. R. Choudhry, for
\nrespondent No. 1.\n<\/p>\n
1958.  November 13.  The Judgment of the Court was delivered
\nby
\nGAJENDRAGADKAR, J.-This appeal arises from a suit brought by
\nthe appellant in the court of the Subordinate Judge, Mysore,
\nas  the\t sole  executor of the will  alleged  to  have\tbeen
\nexecuted by one Lakshmamma on August 22, 1945, (Ex.  A).  In
\nthis suit the appellant claimed a declaration that the\tsaid
\nLakshmamma was the owner of the properties mentioned in\t the
\nschedule attached to the plaint and as such was entitled  to
\ndispose\t of them by a will; and be asked  for  consequential
\nreliefs\t purporting to give effect to the bequests  made  by
\nthe  said  will.   The\tschedule  attached  to\tthe   plaint
\ndescribes  the\tproperties covered by the  will\t under\tfive
\nitems.\tFirst three items in the schedule refer respectively
\nto  5,\t4  and 4 agricultural lands  at\t Hampapura  village,
\nwhereas the fourth item includes
\n428<\/span>
\n9 lands at Arjunahalli village and the last item is.& vacant
\nsite  in Hampapura village.  According to the plaint,  under
\nthe  will respondent I was entitled only to a life  interest
\nin items I and 2 and that on her death the said items  would
\nvest  in respondents 2 to 4 and respondent  5  respectively.
\nSince respondent 1 was in possession of all the five  items,
\nthe  appellant\tclaimed\t a  decree  for\t possession  against
\nrespondent  1  in  respect  of\titems  3,  4  and  5  and  a
\ndeclaration  that  respondent  I was to\t have  only  a\tlife
\ninterest in items 1 and 2. By his plaint the appellant\talso
\nclaimed\t to  recover Rs. 2,106 which had been  collected  by
\nrespondent  1  by way of income from the suit  lands  and  a
\nfurther\t prayer\t was made for the payment of  current  mesne
\nprofits by respondent 1.\n<\/p>\n
Before referring to the pleadings of the parties it would be
\nrelevant  to mention the material facts in regard  to  their
\nrelationship  which are not in dispute.\t One Annaji  lyengar
\nwho  died in July 1903 left behind him his adopted son,\t the
\nappellant,  and two daughters Gundamma alias  Ranganayakamma
\nwho  is\t still\talive and Lakshmamma alias  Achamma  who  is
\nalleged\t to  have  executed  the  will\tin  suit  and\tdied
\nthereafter on September 26, 1945, at Mandya.  Respondents  2
\nto 4 are the sons of the appellant.  Lakshmamma was  married
\nto Sadagopalachar who died in December 1908.  The couple had
\nthree  children,  a son named Narayana lyengar who  died  on
\nJanuary 14, 1944, without any issue and left behind him\t his
\nwidow  respondent  1  ; and the two  remaining\tchildren  of
\nLakshmamma  were  daughters  Thirumalamma  and\tYadugiramma.
\nBoth  of them are dead.\t Thirumalamma was married to one  G.
\nParthasarathy  lyengar\tby  whom  she  had  a  son  of\tweak
\nintellect, who died pending litigation, and three  daughters
\nNeelu,\tJaya  and  Padmini.   Yadugiramma  was\tmarried\t  to
\nKalbagal  Garudachar  and  by him she had  a  son  Narasimha
\nlyengar,   respondent  5,  and\tdaughter  Lilly.    Kalbagal
\nGarudachar had a son S. G. Kalbagal, (hereinafter  described
\nas  Junior Kalbagal) from his first wife.  Jaya was  married
\nto  Kalbagal Junior.  The claim made by the appellant  under
\nthe will is resisted by respondent 1.\n<\/p>\n
429<\/span><\/p>\n
Respondents 2 to 5 have not appeared in the proceedings.
\nAccording to the case set out by the appellant in his plaint
\nAnnaji lyengar bad made a gift of properties, items 1 and 2,
\nin  favour jointly of Lakshmamma and Sadagopalachar under  a
\nregistered  deed of gift on February 16, 1902 (Ex.  D).\t  It
\nwas also alleged that the said Annaji lyengar had executed a
\nwill  On  August 31, 1901, (Ex.\t B2(a)) under which  he\t had
\nbequeathed in favour of Lakshmamma and Sadagopalachar  hypo-
\nthecation bonds to the extent of Rs. 10,320 as gift with the
\nexpress stipulation that the survivor of the legatees should
\ntake  the  whole  of  the  bequest  by\tsurvivorship.\t The
\nappellant  alleged  that Sadagopalachar was a  man  of\tvery
\nmoderate  means\t and  had  given up his\t petty\tjob  in\t the
\nregistration  department in order to manage  the  properties
\nreceived  by him and his wife from Annaji  lyengar.   During
\nthe course of the management Sadagopalachar used the cash of
\nRs.  10,320  received by bequest under the  will  of  Annaji
\nlyengar to buy some immoveable properties including items  3
\nand   4.   Since  Sadagopalachar   pre-deceased\t  his\twife
\nLakshmamma, all his rights in the properties acquired  under
\nthe  gift  deed\t as well  as  those  subsequently  purchased
\ndevolved  on Lakshmamma alone by survivorship.\tThat is\t how
\nshe  became  the  absolute owner  of  the  said\t properties.
\nAlternatively  it was alleged by the appellant that even  if
\nsurvivorship  did not apply and so her son Narayana  lyengar
\nacquired  interest  to\thalf the  share\t in  the  properties
\ncovered\t by the gift deed, he had during his  lifetime\tsold
\naway  considerable properties of his father and mother\tmuch
\nabove  the  value of his half share and in  consequence\t the
\nremaining properties which represent Lakshmamma’s half share
\nbecame her absolute properties.\t On this alternative  ground
\nthe  absolute  title of Lakshmamma with regard\tto  all\t the
\nproperties  in suit was set up.\t The appellant thus  claimed
\nthat Lakshmamma was entitled to make a will and asked -.or a
\ndeclaration  in that behalf and consequential reliefs so  as
\nto  give effect to the terms and dispositions of  the  will.
\nAccording to the appellant the will propounded by him was
\n430<\/span>
\nthe last testament of Lakshmamma and it had been a  executed
\nby her voluntarily and of her own free will while she was in
\na sound and disposing state of mind.\n<\/p>\n
Respondent I disputed the appellants claim.  She denied that
\nAnnaji\tlyengar had made a will on August 31, 1901, or\tthat
\nLakshmamma and Sadagopalachar had received the moveables  of
\nthe value of\tRs. 10,320 under it.  According to her,\t the
\ngift  deed  (Ex.   D)  did not\tprovide\t for  devolution  of
\ninterest  by survivorship; she pleaded that  Lakshmamma\t had
\ntransferred all her interests in the properties comprised in
\nthe  gift deed in favour of her husband\t Sadagopalachar\t who
\nthen  became their sole owner.\tRespondent 1 did  not  admit
\nthat the properties subsequently purchased by Sadagopalachar
\nincluding  items  3  to 5 were\tpurchased  with\t any  monies
\nbequeathed to him and his wife by Annaji lyengar;  according
\nto  her, Sadagopalachar had made these purchases  with\this,
\nown funds.  Respondent 1’s case was that, after the death of
\nhis  father  Sadagopalachar, her  husband  Narayana  lyengar
\nbecame\tthe  absolute  owner of all the\t properties  and  so
\nLakshmamma  was\t not  competent in law to  make\t a  will  in
\nrespect\t of any of them.  She further alleged that the\twill
\nset up by the appellant was not genuine or valid and that at
\nthe  material  time  Lakshmamma\t was  not  in  a  sound\t and
\ndisposing  state of mind.  She contended that the  will\t had
\nbeen brought into existence through the machinations of\t the
\nappellant  and she disputed the appellant’s right  to  bring
\nthe present suit.\n<\/p>\n
On  these pleadings the learned trial judge  framed  fifteen
\nissues.\t  He found that the will executed by Annaji  lyengar
\non August 31, 1901, was genuine and valid; and that the rule
\nof survivorship was applicable as between the legatees inter
\nse  in respect of the properties conveyed by the said  will.
\nIt was, however, held that the rule of survivorship did\t Dot
\napply  to  the\tproperties  gifted  to\tSadagopalachar\t and
\nLakshmamma  under Annaji’s deed of gift (Ex.  D)  which\t was
\nheld  to be genuine and valid.\tIn regard to the  properties
\nsubsequently  purchased by Sadagopalachar the learned  judge
\nsaid that ” in fairness to the parties he would
\n431<\/span>
\nlike  to hold that various survey numbers in items 3  and  4
\nhad been purchased by Sadagopalachar out of the joint income
\nfrom the properties bequeathed to him and his wife by Annaji
\nas also from the properties and through income which he\t got
\nat  a partition between himself and his\t coparCeners  “.(Ex.
\nF).   The  purchases made by Narayana Iyengar were  held  to
\nhave  been made out of the income of the properties of,\t his
\nfather and of his mother.  The learned judge-‘ rejected\t the
\nplaintiffs  case that Narayana lyengar had disposed  of\t his
\nproperties  equivalent to his right under the gift  deed  of
\nAnnaji\t(Ex.   D)  and held that he was\t the  owner  of\t the
\nproperties which had. vested in his father.  In the  result,
\naccording to the learned judge, Lakshmamma had a half  share
\nin  all the properties in suit and so she was  competent  to
\nmake  the  will in respect of the said share.\tThe  learned
\njudge  then considered the question as to the  execution  of
\nthe will set up by the appellant and came to the  conclusion
\nthat  the will (Ex.  A) was genuine and valid to the  extent
\nof the share belonging to the testatrix.  The learned  judge
\nalso found that the suit was maintainable, was not barred by
\ntime  and  had been properly filed.  As a  result  of  these
\nfindings the learned judge declared that Lakshmamma was\t the
\nfull owner of half the share in the scheduled properties and
\nthat respondent I under the will had only a life interest in
\nrespect\t of the said half share in items 1 and 2. As a\tcon-
\nsequence  of  this  declaration the  decree  passed  by\t the
\nlearned judge directed respondent I to put the appellant  in
\npossession  of Lakshmamma’s half share in items 3, 4 and  5;
\nit also ordered respondent 1 to pay. to the appellant a\t sum
\nof Rs. 1,050 out of the past mesne profits recovered by her.
\nAn enquiry into future mesne profits was also directed under\n<\/p>\n
0.  XX, r. 12.\tIn view of the fact that the  appellant\t had
\nsucceeded only in regard to half the properties in suit\t the
\ndecree askEd the parties to bear their own costs.
\nAgainst this decree respondent I preferred an appeal in\t the
\nHigh  Court  of\t Mysore;  and  the  appellant  filed   cross
\nobjections.  The High Court held that the appellant had\t not
\nestablished that when Lakshmamma was
\n432<\/span>
\nalleged\t to  have executed the will she was in a  sound\t and
\ndisposing state of mind or that it was her will in the sense
\nthat it represented her\t intentions.  According to the\tHigh
\nCourt,\tin  the\t light\tof  this  finding  ”  it  might\t  be
\nunnecessary to consider the other issues in the case”.\tEven
\nso  the High Court proceeded to indicate its conclusions  on
\ntwo  of\t such  issues.\t It held   that\t the  appellant\t had
\nentirely failed to prove that the money for the purchase  of
\nitems 3, 4 and 5 came out of any bequest under Annaji’s will
\n(Ex.   B2(a)) or the incomes from the properties covered  by
\nthe  gift  deed (Ex.  D) and so in  its\t opinion  Lakshmamma
\ncould  not claim any share in the said properties.   On\t the
\nother hand, the High Court indicated that it was inclined to
\naccept\tthe plea raised by respondent 1 that Lakshmamma\t had
\ntransferred all her interest in the properties comprised  in
\nthe   said   deed  of  gift  in\t favour\t  of   her   husband
\nSadagopalachar; and since in its opinion ” Lakshmamms at  no
\ntime  appears to have claimed that she had any\tinterest  in
\nthose  properties,  there  was\tconsiderable  force  in\t the
\nargument  urged\t by respondent 1 that LakShmamma  must\thave
\nrelinquished her interest in the said properties and  waived
\nher  rights  in\t favour of -her husband “.  The\t High  Court
\nthought\t  that\tthe  learned  trial  judge  had\t not   fully
\nconsidered all the material bearing on this point and so was
\nin error in holding that at the relevant date Lakshmamma had
\na  subsisting  interest in half the share even in  the\tsuit
\nproperties,  items  1  and  2.\tHaving\tthus  indicated\t its
\ndecision on the two issues the High Court has observed\tthat
\neven if it had found in favour of the appellant on these two
\npoints it would not have been of any help to him because his
\ncase must inevitably fail when it is held that the will\t set
\nup  by him was not proved to be the last will and  testament
\nof  Lakshmamma.\t  In  the result  the  appeal  preferred  by
\nrespondent I was allowed, the cross-objections filed by\t the
\nappellant were rejected and his suit was dismissed.  In\t the
\ncircumstances  of the case the High Court made no orders  as
\nto costs.\n<\/p>\n
The  appellant then applied for and obtained  a\t certificate
\nfrom the High Court that the decision under
\n433<\/span>
\nappeal is one of reversal and it involves a claim respecting
\nproperties  of\tthe value of not less than Rs.\t20,000.\t  In
\npursuance  of this certificate the High Court  ordered\tthat
\nthe  appeal  to this Court should be admitted; and  so\tthis
\nappeal has come to this Court.\n<\/p>\n
Since  the  main  contention  raised  by  the  appellant  is
\ndirected against the finding of the High Court that the will
\nin question is not proved to be the last will and, testament
\nof  Lakshmamma, it would be necessary to refer to the  broad
\nfeatures,  and\tdispositions, of the will and  the  evidence
\nadduced\t by  the appellant to prove its execution.   At\t the
\nmaterial  time\tLakshmamma was about 64 years of  age.\t She
\nusually\t resided at Hampapur; but about a month\t before\t the
\nexecuting  of the will she had gone to Mandya to attend\t the
\nmarriage  in  the  house  of  Junior  Kalbagal.\t  After\t the
\nmarriage  was  over  she would\tnormally  have\treturned  to
\nHampapur  but she fell ill and had to extend her  stay\twith
\nJunior Kalbagal.  The appellant’s case is that she had\ttold
\nhim  that  she wanted to execute a will and  had  given\t him
\ninstructions in that behalf.  This talk had taken place\t be-
\ntween  her  and\t the  appellant\t about\ta  year\t before\t the
\nexecution of the will.\tThe appellant, however, did not find
\ntime  to get the will written.\tWhen Lakshmamma fell ill  at
\nMandya\tthe appellant had gone to visit her and she  pressed
\nthe appellant to prepare the draft of her will in accordance
\nwith her instructions.\tSo the appellant prepared a draft at
\nMysore\ta day prior to the execution of the will.   He\tthen
\nwent to Mandya by. the morning train on August 22, 1945, and
\nthe  will  was\tgot  written about  11\tor  11-30  a.m.\t The
\nappellant  had the draft in his hand from which he  dictated
\nto  the\t scribe\t Chokkanna (P.\tW. 3) who  wrote  the  will.
\nAfter  the  will  was  written the scribe  took\t it  to\t the
\nadjoining room where Lakshmamma was lying in bed.  The\twill
\nwas  then  read\t out to her and was signed by  her  in\tfive
\nplaces (Exs.  A-1 to A-5).  Subsequently it was attested  by
\ntwo  witnesses\tKrishnamurthy Rao (P. W.  1)  and  Narasimha
\nIyengar (P.  W. 2).  Some time\t   later  during the  course
\nof the day the Sub-Registrar  came  to the house  of  Junior
\nKalbagal and in his 55
\n434<\/span>
\npresence the will (Ex.\tA) was duly registered.\t On the same
\nday  at about the same time Lakshmamma executed a  power  of
\nattorney  in  favour  of the appellant (Ex.   EE)  and\tthis
\ndocument  was  also  duly  attested  and  registered.\t The
\nappellant has examined himself (P. W. 7), the two  attesting
\nwitnesses (P.  W. 1 and P.W.  2), the scribe (P.  W. 3)\t and
\nJunior\tKalbagal  (P. W.4) in support of his case  that\t the
\nwill was duly and validly executed by Lakshmamma.
\nThe  will  is  a  fairly  long\tdocument  and  its   English
\ntranslation  spreads over eight printed pages.\t Though\t the
\ndispositions  in the will have occupied a small\t portion  of
\nthe  document it contains elaborate arguments in support  of
\nthe averment of the testatrix that she was entitled to\tmake
\na  will\t in respect of all the properties mentioned  in\t the
\nwill.  The will begins with the recital about the illness of
\nthe  testatrix and says ” as I have felt in my mind that  it
\nis necessary to mention here certain matters clearly so that
\nthere  may not be any kind of obstacles and  obstruction  at
\nthe  instance of any in respect of my purposes\tcoming\tinto
\neffect\tafter my death I have got them written\tin  detail.”
\nThen,  the will refers to the gift deed executed  by  Annaji
\njointly\t  in  favour  of  the  testatrix  and  her   husband
\nSadagopalachar\tas  well  as to Annaji’s  will\tunder  which
\nhypothecation  bonds  of  the  value  of  Rs.  10,000\twere
\nbequeathed  to\tboth of them.  The will then refers  to\t the
\nfact that Sadagopalachar was possessed of only a house and a
\ncarriage  shed and owned no other ancestral property.\tEven
\nthe  said  house was of ” very ancient times and  was  in  a
\ndilapidated    condition   “.\tAccording   to\t the\twill
\nSadagopalachar held a small government job which he resigned
\nin order to live in Hampapur and to look after the  property
\nobtained  by gift from Annaji.\t” It was my opinion “,\tsays
\nthe  will, ” that he was probably looking after my share  of
\nthe  property in addition to his own and was  improving\t the
\nsame.  It is but natural to think in this manner mutually in
\nrespect\t of husband and wife “. Then the will refers to\t the
\nsubsequent  purchase  of certain lands and  avers  that\t the
\namounts received by the couple from Annaji were utilised for
\nthe said
\n435<\/span>
\npurchase.   The\t will then refers to the  death\t of  Sadago-
\npalachar  in  1908  and\t describes  the\t management  of\t the
\nproperties  during the lifetime of Narayana lyengar the\t son
\nof the testatrix.  It says that during Narayanan’s  minority
\nthe  testatrix sold some properties at the advice  and\twith
\nthe help of her Brother-in-law Srinivasa lyengar for debts ”
\nwithout considering whether it was my share or my  husband’s
\nshare  “; she. also sold gold and diamond ornaments to\tmeet
\nthe  urgent needs of the family.  After Narayanan  became  a
\nmajor  he began to manage the property in constitution\twith
\nSrinivasa  lyengar.  Narayanan wanted to build a  house\t for
\nresidence  in Mysore and so he sold some wet lands  situated
\nat Sarvamanya Gaudhanahalli village.  Narayanan had no issue
\nand  so he spent generously at the time of the\tmarriage  of
\nthe  three  daughters of his  younger  sister  Thirumalamma.
\nBesides he got ornaments prepared moderately for all of them
\nand  purchased\tand gave them as pin money  some  wet  lands
\nsituated  at Arjunahalli village.  Narayanan  purchased\t and
\ngave  some wet lands at the same village to the son  of\t his
\nsecond\tyounger\t sister Kalbagal Narasimha  Iyengar  and  to
\nSingamma  and Lalithamma.  Then the will refers\t to  certain
\npurchases  made by Narayanan and adds that the\tpurchase  of
\nthe said lands nominally stands in his name though the right
\nto  the\t property vested in the testatrix.   The  will\tthen
\nstates\tthat  Narayanan had no issue and so he\ttreated\t his
\nyounger\t sister’s  children as his own,\t attended  to  their
\neducation,  marriage  and other\t auspicious  functions\twith
\ngreat  zeal.   Having  disposed of his\tproperties  for\t the
\nbenefit of the said children Narayanan considered that since
\nhe  was\t the  only son of the testatrix\t her  share  of\t the
\nproperty  was sufficient for the maintenance of himself\t and
\nhis  wife and so he had no worry on that account.  In  other
\nwords, the will alleges that as a result of the\t alienations
\nmade  by  Narayanan  he\t ceased to have\t any  share  in\t the
\nproperties  that  remained  and\t in  consequence  the\tsaid
\nproperties belonged exclusively and solely to the testatrix.
\nThen  the will refers to the insurance amount of  Rs.  4,000
\nwhich was paid to respondent 1 on Narayanan’s death; and
\n436<\/span>
\nin  regard to Narayanan’s illness which ultimately  resulted
\nin  his death the will adds that the testatrix\therself\t had
\nprovided  separate  money  for\this  medicinal\tand   family
\nexpenses  and that she had given Narayanan Rs.\t3,000  which
\nhad  been deposited with her Brother-in-law and the  Reserve
\nBank  share of Rs. 500 to enable him to purchase a house  at
\nMysore.\t  The ,.will then refers to respondent in  terms  of
\naffection and states that the testatrix was making a bequest
\nfor  life of items I and 2 in her favour in order  that\t she
\nmay lead her life without any difficulty. ,Except me “, says
\nthe  will, ” no one has any right whatever to the  scheduled
\nproperties.   They  should go only to those for whom  it  is
\nintended  here\taccording to my desire after  my  death\t but
\nthere is no reason whatsoever for their going to my  agnates
\nor  any others.\t I am at full liberty to  make\tdispositions
\nhereby according to my desire “.\n<\/p>\n
After making these elaborate averments the will proceeds  to
\nmake  dispositions of items I to 5. Items I and 2 are  given
\nto  respondent for life.  ” She shall have no right such  as
\nhypothecation,\tsale,  gift,  exchange, etc.,  of  the\tsaid
\nproperties  nor\t has  she  any\tright  whatever\t to   create
\nliability in any way in favour of others “. After her  death
\nrespondents 2 to 4 are given item I and item 2 is bequeathed
\nto respondent 5. Respondent 5 is described as an heir by the
\ntestatrix after her death and has been authorised to perform
\nall  her ceremonies.  Item 3 is bequeathed to  respondent  5
\nand item 4 to respondents 2, 3 and 4. Out of the 15 acres of
\nland included in item 4, the bequest in regard to 9 acres is
\nburdened  with\ta charge in favour of certain  legacies\t and
\ncharities  mentioned  in the will.  The\t recipients  of\t the
\nlegacies  who are the relatives of the testatrix are  named,
\nand the charities are also specifically mentioned.  Rs.\t 500
\neach have to be paid to her eldest daughter’s third daughter
\nPadminiamma, to her eldest daughter’s son Thirumalachar\t and
\nto  Sudhakalyani,  the\tdaughter of  her  eldest  daughter’s
\nsecond\tdaughter Jaya and to Nagendra, son of Neelamma,\t the
\neldest daughter of her eldest daughter.\t Besides, Rs.  1,000
\nhad to be used for
\n437<\/span>
\nconducting service in the Sannadi of Lakshminarayanaswamy at
\nHampapur  on the respective dates of death of  her  husband,
\nher son and herself.  A sum of Rs. 500 has to be endowed for
\nthe  Nandadipa\tservice\t in the name  of  Narayanan  in\t the
\nSannadi\t of  Thirupati Venkataramanaswami, and Rs.  500\t for
\nsimilar service in the name of Sadagopalachar in the Sannadi
\nof  Channakeshavaswami,\t Belur, the place of the  family  in
\nHassan District.  An amount of Rs. 1,000 has to be  utilised
\nfor scholarship to poor students.  In all Rs. 5,000 have  to
\nbe spent for these legacies and charities.  The will directs
\nthat  if  respondents  2 to 4 fail to  make  these  payments
\nwithin\tthree  years after the death of\t the  testatrix\t the
\nappellant  who\tis  appointed the executor  under  the\twill
\nshould,\t after the expiry of the said three years, sell\t for
\nreasonable price the lands charged in that behalf and should
\npay  the full amount realised by such sale to carry out\t the
\naforesaid  charitable  works  and  to  give  effect  to\t the
\nlegacies  mentioned in the will.  The will then\t avers\tthat
\nafter her death the document would remain with the appellant
\nand  it adds that the testatrix has not executed  any  prior
\nwill but that in case any such will has been executed by her
\nthe  same  stood cancelled by the execution of\tthe  present
\nwill.  The will then repeats the averment about the title of
\nthe  testatrix\tand states that when  Narayana\tIyengar\t was
\nalive  he had sold about 17 acres of land situate at  Adagur
\nand other places for purchasing lands at Arjunahalli village
\nfor  his  sisters’ children and so the\ttestatrix  had\tfull
\nliberty\t to make a disposition in respect of  the  scheduled
\nproperties  which  were her own.  The will  also  adds\tthat
\nthough the said properties stand in the name of her son\t and
\nrent  notes  in respect of them are  similarly\texecuted  in
\nfavour of her son that does not affect her title to the said
\nproperties  in any way.\t These are the broad  features,\t and
\ndispositions, of the will in question.\n<\/p>\n
We  would  now\tindicate briefly the  evidence\tled  by\t the
\nappellant  on the question about the valid execution of\t the
\nwill.\tWe  have already mentioned that\t the  two  attesting
\nwitnesses,  the scribe and the appellant himself have  given
\nevidence in support of the will.\n<\/p>\n
438<\/span><\/p>\n
Mr.  Krishnamurthy Rao (P.  W. 1) was a medical\t officer  to
\nthe  Mysore  Sugar Company, Mandya, and he knew\t the  Junior
\nKulbagal  who  was working as a Cane Superintendent  in\t the
\nsaid factory.  This witness was called by Kalbagal to attest
\nthe will and so he went to his house and saw that Lakshmamma
\nwas lying in her bed since she had an attack of paralysis on
\nher left  side.\t According to the witness her mind was clear
\nand  he attested the will after ascertaining from  her\tthat
\nthe  document  had received her approval.  The\twitness\t was
\ncross-examined\tin  regard  to his  statement  that  he\t had
\ntreated\t Lakshmamma  and it was brought out in\this  answers
\nthat though she may have been under his treatment for  about
\na  week\t he could not say if her name found a place  in\t the
\nhospital  register.  He, however, added that  even  patients
\nwho  are treated in their houses would be mentioned  in\t the
\nhospital  ‘register if they come and take medicine from\t the
\nhospital.   The\t witness  admitted that\t the  will  was\t not
\nwritten\t in  his presence and that it  was  already  written
\nbefore\the  went to attest it.\tWhen the witness  was  asked
\nabout the details of his signature on the will he gave\tans-
\nwers   which  showed  that  he\tdid  not  have\t any   clear
\nrecollection  as  to what happened on that date.   First  he
\nstated that he had put one signature but ultimately admitted
\nthat  he had signed twice, once while he attested  the\twill
\nand  also  when\t the  Sub-Registrar  registered\t it  in\t his
\npresence.   It\tfact some of his answers  suggest  that\t the
\nwitness\t did not even remember that he was present when\t the
\nSub-Registrar  arrived\tand registered\tthe  document.\t The
\nwitness stated that the will was read in his presence but he
\ndid not know if the whole was read or only a few portions of
\nit.\n<\/p>\n
The  next attesting witness is Narasimha lyengar (P. W.\t 2).
\nHe   was  employed  in\tMandya\tSugar  Company\t Distillery.
\nAccording  to him the will was written in his  presence\t and
\nLakshmamma put her signature on it also in his presence.  In
\ncross-examination,  however, it appeared that his  statement
\nthat  he  was present when the will was written may  not  be
\naccurate.   He\tdid  not know whether there  was  any  draft
\nalready prepared and he saw none.\n<\/p>\n
439<\/span><\/p>\n
According  to him, after the will was written the  appellant
\nread out the will to Lakshmamma\t  but\t   according  to the
\nappellant  the will was read out by the scribe.\t  He  stated
\nthat after the will was attested both he and P.\t  W. 1\tleft
\nthe  place but it is clear that P. W. 1 was present  at\t the
\ntime of registration.  The witness even did not know whether
\nLakshmamma had any attack of paralysis.\t The evidence of the
\nscribe\t(P.  W. 3) and of the appellant (P.  W.\t 7)  clearly
\nnegatived Mr. Iyengar’s statement that he was present at the
\ntime the will was written.  The evidence of both the  scribe
\nand  the appellant unmistakably shows that Mr.\tlyengar\t was
\nnot present when the will was written.\n<\/p>\n
Chokkanna  (P.\tW. 3) the scribe is a relative of  Kulbagal.
\nThe  mother of Chokkanna and Kulbagal’s mother are  sisters.
\nHe has written the will.  According to him Lakshmamma stated
\nthat  she wanted to execute a will and that she would  agree
\nto what the appellant would get written.  The witness stated
\nthat the will was written according to the dictation of\t the
\nappellant in the presence of Lakshmamma.  The appellant\t had
\na draft with him.  Except the appellant, Lakshmamma and\t the
\nscribe none else was present when the will was written.\t The
\nattesting  witnesses came after the will was  written.\t The
\nwitness\t then read the will to Lakshmamma who  consented  to
\nthe recitals and signed it.  It may be pointed out that\t the
\naccount given by the scribe in respect of the writing of the
\nwill  is  somewhat different from the account given  by\t the
\nappellant.   The  -appellant has stated that  the  will\t was
\nwritten\t in  one  room\tand  Lakshmamma\t was  lying  in\t the
\nadjoining  room and it was after the will was  written\tthat
\nthe scribe went into the adjoining room and read the will to
\nher  so that the statement of the scribe that the  will\t was
\nwritten\t in the presence of Lakshmamma is not  supported  by
\nthe  appellant.\t In fact the appellant’s statement  is\tcor-
\nroborated by the evidence of Junior Kulbagal in this matter.
\nMr.  Kalbagal  (P.W.  4) does not seem\tto  know  about\t the
\nintention of the testatrix to execute the will.\t It was when
\nplaintiff asked him to get some attesting
\n440<\/span>
\nwitnesses  that he came to know that a will was going to  be
\nexecuted.  He then went and brought P. W. 1 and P. W. 2\t for
\nattestation.  This witness admitted that Lakshmamma was\t ill
\nand was unable to get up and leave her bed.  He heard  about
\nher  intention\tto  execute the will about  9  a.m.  in\t the
\nmorning.  He was not present when the will was written.\t  He
\nwas,  how  ever, present when the will was read out  by\t the
\nscribe\tto Lakshmamma.\tHis father Kalbagal  Garudachar\t and
\nhis  wife Jaya were also present.  The witness\tthen  stated
\nthat  the appellant brought the Sub-Registrar at about\t5-30
\np. m. and the Sub-Registrar registered the will.  It  would,
\nhowever,  appear from the application (Ex.  VI) made to\t the
\nSub-Registrar  inviting him to come to Kalbagal’s  house  to
\nregister  the  will that it was not the\t appellant  but\t the
\nwitness himself who had brought the Sub-Registrar.
\nThe  last  witness in support of the will is  the  appellant
\nhimself,  (P.W.\t 7).   He has  spoken  to  the\tinstructions
\nreceived  by him from Lakshmamma a year before the  date  of
\nthe execution of the will and he has stated that he prepared
\na  draft  at Mysore a day before the will was  executed\t and
\nthat  the will was written by the scribe as he dictated\t the
\ncontents from the said draft.  He had told Lakshmamma  about
\nwhat the draft contained but he admitted that the draft\t was
\nnot  read out to her.  The witness has then referred to\t the
\nfact that the will was read out by the scribe to  Lakshmamma
\nand she consented to it, whereupon it was signed by her\t and
\nsubsequently attested by the two attesting witnesses.\tThen
\nthe  witness refers to the registration of the\tdocument  at
\nabout 5-30 p.m. On the morning of the day when the will\t was
\nexecuted  the witness was told by Lakshmamma that she  would
\nexecute a power of attorney though the witness had not asked
\nfor  it.  A power of attorney was accordingly  prepared\t and
\nduly executed and registered.  That in brief is the evidence
\non which the appellant relies.\n<\/p>\n
It would be convenient at this stage to refer briefly to the
\nreasons\t given\tby  the courts below  in  support  of  their
\nrespective  findings.  The learned trial judge put the\tonus
\nof proving the will on the appellant but
\n441<\/span>
\nhe observed that ” the proof that is necessary to  establish
\na  will\t is not an absolute or a conclusive  one.   What  is
\nrequired is only such proof as would satisfy a prudent man:-
\nThe  learned judge then considered the evidence of  the\t two
\nattesting witnesses and the scribe and observed that ” there
\ncan  absolutely be no doubt that P.W. 3 wrote Ex.  A at\t the
\ntime when it is said to have been( written “. He was of\t the
\nopinion\t that the evidence of the scribe fully\tcorroborates
\nthe evidence of P. W. I and P. W. 2. The learned judge\tthen
\nmentioned the fact that P. W. 4 who supported the  appellant
\nis no other than the husband of Lakshmamma’s  granddaughter.
\nThe evidence of the appellant himself was considered by\t the
\nlearned\t judge\tand his conclusion was that ” it had  to  be
\ntaken  that Ex.\t A is a will executed by Lakshmamma and\t the
\nsignatures,  Exs.  A – I to A-5 are those of  Lakshmamma  “.
\nThe argument urged by respondent I that Lakshmamma could not
\nhave  understood the contents of Ex.  A was rejected by\t the
\nlearned judge and he observed that ” when it is proved -that
\nExs.   A-1 to A-5 are signatures of Lakshmamma and that\t she
\nexecuted Ex.  A, it is to be presumed that the testatrix had
\nthe knowledge of the contents of the will “. In the end\t the
\nlearned\t judge thus recorded his finding: ” In view  of\t the
\nevidence  and the presumption referred to above I  think  we
\ndeed  not  have any hesitation in  holding  that  Lakshmamma
\nexecuted Ex.  A having fully understood the nature of Ex.  A
\nand the recitals made therein “.\n<\/p>\n
The  High  Court, on the other hand, has  taken\t a  contrary
\nview.\tThe High Court thought that the evidence adduced  by
\nthe  appellant\tto prove the execution of the will  was\t not
\nsatisfactory.\tIt then examined the said evidence  in\tsome
\ndetail,\t criticised the discrepancies appearing in the\tsaid
\nevidence,  considered the probabilities and concluded  that,
\non  the\t whole,\t the said evidence  would  not\tjustify\t the
\nfinding\t that  the  will  had  been  duly  executed  by\t the
\ntestatrix.  The High Court also thought that the appellant’s
\nversion about the instructions given by Lakshmamma to him
\n56<\/span>
\n442<\/span>
\nin  the\t matter\t of the execution of  the  will\t was  highly
\nimprobable;  and,  according to the High  Court,  the  whole
\nevidence  of  the appellant appeared to\t be  unsatisfactory.
\nThe  High  Court then considered the question  of  onus\t and
\nobserved  that\tsince the appellant’s sons  had\t received  a
\nsubstantial benefit under the will and since he had taken  a
\nleading part in its execution, the onus was heavy on him  to
\nremove\tthe  suspicions\t attending  the\t execution  of\t the
\ndocument  and  to  establish  that  Lakshmamma\thad   really
\nunderstood  its contents, had approved of them and  had\t put
\nher  signatures on it when she was in a sound and  disposing
\nstate  of mind.\t It that the High Court also felt  that\t the
\ndispositions made by the will were unnatural and improbable;
\nin particular it took the view that since the appellant\t had
\ncome  into  the\t family of Annaji by adoption  it  was\tvery
\nunlikely   that\t his  sons  should  have  received  such   a
\nsubstantial benefit under the will.  In fact the judgment of
\nthe  High Court appears to indicate that The High Court\t was
\ninclined  to hold that the testatrix may not have been in  a
\nsound and disposing state of mind at the material time.\t  It
\nis  on these findingS that the High Court reached its  final
\nconclusion  that the appellant had failed to prove  the\t due
\nand valid execution of the will.\n<\/p>\n
What  is the true legal position in the matter of  proof  of
\nwills ? It is well-known that the proof of wills presents  a
\nrecurring topic for decision in courts and there are a large
\nnumber of judicial pronouncements on the subject.  The party
\npropounding a will or otherwise making a claim under a\twill
\nis no doubt seeking to prove a document and, in deciding how
\nit  is\tto  be\tproved, we  must  inevitably  refer  to\t the
\nstatutory  provisions which govern the proof  of  documents.
\nSections 67 and 68 of the Evidence Act are relevant for this
\npurpose.  Under s. 67, if a document is alleged to be signed
\nby  any\t person, the signature of the said  person  must  be
\nproved\tto  be in his handwriting, and for  proving  such  a
\nhandwriting  under ss. 45 and 47 of the Act the opinions  of
\nexperts\t and of persons acquainted with the  handwriting  of
\nthe  person concerned are made relevant.  Section  68  deals
\nwith
\n443<\/span>
\nthe  proof of the execution of the document required by\t law
\nto  be attested; and it provides that such a document  shall
\nnot be used as evidence until one attesting witness at least
\nhas  been called for the purpose of proving  its  execution.
\nThese  provisions prescribe the requirements and the  nature
\nof proof which must be satisfied by the party who relies  on
\na  document in a court of law.\tSimilarly, ss. 59 and 63  of
\nthe  Indian  Succession Act are also relevant.\t Section  59
\nprovides that every person of sound mind, not being a minor,
\nmay   dispose  of  his\tproperty  by  will  and\t the   three
\nillustrations to this section indicate what is meant by\t the
\nexpression  ”  a  person of sound mind\t”  in  the  context.
\nSection\t 63 requires that the testator shall sign  or  affix
\nhis  mark  to the will or it shall be signed by\t some  other
\nperson\tin  his presence and by his direction and  that\t the
\nsignature or mark shall be so made that it shall appear that
\nit  was intended thereby to give effect to the writing as  a
\nwill.\tThis  section also requires that the will  shall  be
\nattested  by two or more witnesses as prescribed.  Thus\t the
\nquestion as to whether the will set up by the propounder  is
\nproved to be the last will of the testator has to be decided
\nin  the light of these provisions.  Has the testator  signed
\nthe  will ? Did he understand the nature and effect  of\t the
\ndispositions  in the will ? Did he put his signature to\t the
\nwill  knowing what it contained ? Stated broadly it  is\t the
\ndecision  of these questions which determines the nature  of
\nthe finding on the question of the proof of wills.  It would
\nprima  facie be true to say that the will has to  be  proved
\nlike   any   other  document  except  as  to   the   special
\nrequirements  of  attestation  prescribed by s.\t 63  of\t the
\nIndian\tSuccession  Act.  As in the case of proof  of  other
\ndocuments so in the case of proof of wills it would be\tidle
\nto expect proof with mathematical certainty.  The test to be
\napplied would be the usual test of the satisfaction of\tthe,
\nprudent mind in such matters.\n<\/p>\n
However, there is one important feature which  distinguishes
\nwills from other documents.  Unlike other documents the will
\nspeaks\tfrom the death of the testator, and so, when  it  is
\npropounded or produced
\n444<\/span>
\nbefore\ta court, the testator who has already  departed\t the
\nworld  cannot say whether it is his will or not ;  and\tthis
\naspect\tnaturally introduces an element of solemnity in\t the
\ndecision  of  the  question  as\t to  whether  the   document\n<\/p>\n
-propounded  is proved to be the last will and testament  of
\nthe  departed testator.\t Even so, in dealing with the  proof
\nof wills the court will start on the same enquiry as in\t the
\ncase  of  the proof of documents.  The propounder  would  be
\ncalled\tupon to show by satisfactory evidence that the\twill
\nwas  signed  by\t the  testator, that  the  testator  at\t the
\nrelevant  time was in a sound and disposing state  of  mind,
\nthat he understood the nature and effect of the dispositions
\nand put his signature to the document of his own free  will.
\nOrdinarily when the evidence adduced in support of the\twill
\nis  disinterested, satisfactory and sufficient to prove\t the
\nsound  and  disposing state of the testator’s mind  and\t his
\nsignature  as required by law, courts would be justified  in
\nmaking\ta  finding in favour of the  propounder.   In  other
\nwords,\tthe  onus  on  the propounder can  be  taken  to  be
\ndischarged on proof of the essential facts just indicated.
\nThere  may, however, be cases in which the execution of\t the
\nwill  may  be surrounded by suspicious\tcircumstances.\t The
\nalleged\t signature  of the testator may be  very  shaky\t and
\ndoubtful  and evidence in support of the  propounder’s\tcase
\nthat  the  signature, in question is the  signature  of\t the
\ntestator may not remove the doubt created by the  appearance
\nof  the signature; the condition of the testator’s mind\t may
\nappear\tto  be\tvery feeble and\t debilitated;  and  evidence
\nadduced may not succeed in removing the legitimate doubt  as
\nto  the\t mental capacity of the testator;  the\tdispositions
\nmade  in the will may appear to be unnatural, improbable  or
\nunfair in the light of relevant circumstances; or, the\twill
\nmay otherwise indicate that the said dispositions may not be
\nthe  result of the testator’s free will and mind.   In\tsuch
\ncases  the court would naturally expect that all  legitimate
\nsuspicions should be completely removed before the  document
\nis accepted as the last will of the testator.  The  presence
\nof such suspicious circumstances naturally tends to
\n445<\/span>
\nmake  the  initial  onus  very\theavy;\tand,  unless  it  is
\nsatisfactorily\tdischarged,  courts would  be  reluctant  to
\ntreat the document as the last will of the testator.  It  is
\ntrue  that,  if a caveat is filed alleging the\texercise  of
\nundue  influence,  fraud  or  coercion\tin  respect  of\t the
\nexecution of the will propounded, such pleas may have to  be
\nproved\tby  the\t caveators; but,  even\twithout\t such  pleas
\ncircumstances  may raise a doubt as to whether the  testator
\nwas  acting of his own free will in executing the will,\t and
\nin  such  circumstances, it would be a part of\tthe  initial
\nonus to remove any such legitimate doubts in the matter.
\nApart  from  the suspicious circumstances to which  we\thave
\njust  referred, in some cases the wills propounded  disclose
\nanother infirmity.  PrOpounders themselves take a  prominent
\npart  in  the execution of the wills which  confer  on\tthem
\nsubstantial  benefits.\tIf it is shown that  the  propounder
\nhas taken a prominent part in the execution of the will\t and
\nhas  received substantial benefit under it, that  itself  is
\ngenerally treated as a suspicious circumstance attending the
\nexecution  of  the will and the propounder  is\trequired  to
\nremove\t the  said  suspicion  by  clear  and\tsatisfactory
\nevidence.  It is in connection with wills that present\tsuch
\nsuspicious  circumstances that decisions of  English  courts
\noften  mention\tthe  test of the  satisfaction\tof  judicial
\nconscience.   It  may  be that\tthe  reference\tto  judicial
\nconscience  in\tthis connection is a heritage  from  similar
\nobservations  made by ecclesiastical courts in England\twhen
\nthey exercised jurisdiction with reference to wills; but any
\nobjection  to  the  use of the\tword  ‘conscience’  in\tthis
\ncontext\t would,\t in  our opinion, be  purely  technical\t and
\nacademic, if not pedantic.  The test merely emphasizes that,
\nin  determining\t the question as to  whether  an  instrument
\nproduced before the court is the last will of the  testator,
\nthe court is deciding a solemn question and it must be fully
\nsatisfied that it had been validly executed by the  testator
\nwho is no longer alive.\n<\/p>\n
It  is obvious that for deciding material questions of\tfact
\nwhich  arise  in applications for probate or in\t actions  on
\nwills, no hard and fast or inflexible rules can
\n446<\/span>
\nbe laid down for the appreciation of the evidence.  It\tmay,
\nhowever,  be stated generally that a propounder of the\twill
\nhas  to\t prove the due and valid execution of the  will\t and
\nthat  if there are any suspicious circumstances\t surrounding
\nthe  execution\tof the will the propounder must\t remove\t the
\nsaid  suspicions  from the mind of the court by\t cogent\t and
\nsatisfactory  evidence.\t It is hardly necessary to add\tthat
\nthe result of the application of these two general and broad
\nprinciples   would   always  depend  upon  the\t facts\t and
\ncircumstances of each case and on the nature and quality  of
\nthe evidence adduced by the parties.  It is quite true that,
\nas  observed  by Lord Du Parcq in Harmes v.  Hinkson  (1)  ”
\nwhere  a will is charged with suspicion, the rules enjoin  a
\nreasonable  scepticism,\t not  an  obdurate  persistence\t  in
\ndisbelief.   They  do  not demand from the  judge,  even  in
\ncircumstances\tof   grave   suspicion,\t  a   resolute\t and
\nimpenetrable incredulity.  He is never required to close his
\nmind to the truth “. It would sound platitudinous to say so,
\nbut  it is nevertheless true that in discovering truth\teven
\nin  such cases the judicial mind must always be open  though
\nvigilant, cautious and circumspect.\n<\/p>\n
It  is in the light of these general considerations that  we
\nmust decide whether the appellant is justified in contending
\nthat  the  finding  of the High Court  against\thim  on\t the
\nquestion of the valid execution of the will is justified  or
\nnot.  It may be conceded in favour of the appellant that his
\nallegation  that  Lakshmamma has put her signatures  on\t the
\nwill at five places is proved ; that no doubt is a point  in
\nhis favour.  It may also be taken as proved that  respondent
\nI has failed to prove that Lakshmamma was unconscious at the
\ntime when the will is alleged to have been executed.  It  is
\ntrue she A, as an old woman of 64 years and had been  ailing
\nfor  some  time before the will was executed.  She  was\t not
\nable to get up and leave the bed.  In fact she could sit  up
\nin bed with some difficulty and was so weak that she had  to
\npass  stools in bed.  However, the appellant is entitled  to
\nargue that, on the evidence, the sound and disposing
\n(1)  (1946) 50 C.W.N. 895.\n<\/p>\n
447<\/span><\/p>\n
state of mind of Lakshmamma is proved.\tMr Iyengar, for\t the
\nappellant,  has strongly urged before us that,\tsince  these
\nfacts  are  established, the court must\t presume  the  valid
\nexecution  of the will and in support of his  contention  he
\nhas invited our attention to the relevant statements on\t the
\npoint in the text books dealing with the subject.  Jarman on
\n” Wills ” (1) says that ” the general rule is that the\tonus
\nprobandi  lies\tin every case upon the party  propounding  a
\nwill  and he must satisfy the conscience of the\t court\tthat
\nthe instrument so propounded is the last will of a free\t and
\ncapable testator’.” He adds that, “if a will is rational  on
\nthe  face  of  it, and appears to be duly  executed,  it  is
\npresumed, in the absence of evidence to the contrary, to  be
\nvalid.”\t   Similarly,\tWilliams   on\t”   Executors\t and
\nAdministrators\t ”  (2)\t has  observed\tthat,  ”   generally
\nspeaking, where there is proof of signature, everything else
\nis implied till the contrary is proved; and evidence of\t the
\nwill   having  been  read  over\t to  the  testator   or\t  of
\ninstructions  having  been given is not necessary.”  On\t the
\nother  hand,  Mr. Viswanatha Sastri, for respondent  No.  1,
\ncontends  that\tthe statements on which\t the  appellant\t has
\nrelied refer to wills which are free from any suspicions and
\nthey  cannot be invoked where the execution of the  will  is
\nsurrounded by suspicious circumstances.\t In this connection,
\nit  may\t be pertinent to point out that, in  the  same\ttext
\nbooks,\t we  find  another  rule  specifically\t mentioned.”
\nAlthough  the  rule  of\t Roman Law  “,\tit  is\tobserved  in
\nWilliams, ” that ” Qui se scripsit haeredem ” could take  no
\nbenefit under a will does not prevail in the law of England,
\nyet,  where  the  person who  prepares\tthe  instrument,  or
\nconducts  its  execution, is himself benefited by  its\tdis-
\npositions,  that is a circumstance which ought generally  to
\nexcite\tthe  suspicion of the court, and calls on it  to  be
\nvigilant and zealous in examining the evidence in support of
\nthe instrument in favour of which it ought not to pronounce,
\nunless the suspicion is removed, and
\n(1)  Jarman on ” Wills”–Vol. 1, 8th Ed., P. 50.
\n(2)  Williams  on ” Executors and  Administrators”–Vol.  1,
\n13th Ed.,
\nP. 92.\n<\/p>\n
448<\/span><\/p>\n
it  is judicially satisfied that the paper does express\t the
\ntrue will of the deceased ” (1).\n<\/p>\n
It  would, therefore, be necessary at this stage  to  decide
\nwhether\t an  execution of the will in the  present  case  is
\nsurrounded  by any suspicious circumstances.  Does the\twill
\nappear\tto  be\ton the whole an\t improbable,  unnatural\t and
\nunfair\tinstrument as held by the High Court?  That  is\t the
\nfirst  question\t which\tfalls to  be  considered.   We\thave
\nalready\t indicated  that the preamble to the  will  contains
\nmany argumentative recitals.  Indeed it would not be  unjust
\nto  say that the preamble purports to meet  by\tanticipation
\nthe  main objections which were likely to be raised  to\t the
\ncompetence  of\tLakshmamma to make a will in regard  to\t the
\nproperties  covered  by it.  The preamble  in  great  detail
\nmakes  out  a  case  that the  properties  received  by\t the
\ntestatrix  and\ther  husband under the gift  deed  (Ex.\t  D)
\ndevolved upon her by survivorship after her husband’s death,
\na plea which has not been accepted even by the trial  court.
\nIt also seeks to prove that the subsequent purchases made by
\nher  husband  were  in law the\tjoint  acquisitions  of\t her
\nhusband\t and herself, a point on which the two courts  below
\nhave  differed.\t It sets out in detail the theory  that\t the
\nson of the testatrix has lost his right, title and  interest
\nin  the properties which devolved on him after his  father’s
\ndeath  because he had alienated more than his share  in\t the
\nsaid  properties during his lifetime; and it  even  suggests
\nthat during his illness and to help him to build a house  in
\nMysore\tthe  testatrix\thad  advanced  him  money  from\t her
\nseparate funds, pleas which have not been accepted by either
\ncourt  below.\tIt seems to us that the elaborate  and\twell
\nconsidered recitals which have been deliberately  introduced
\nin   the   preamble  cannot  possibly  be  the\t result\t  of
\ncorresponding  instructions  given by the testatrix  to\t the
\nappellant  for\tpreparing  the draft of her  will.   In\t the
\ncontext\t these recitals sound artificial and  unnatural\t and
\nsome  of them at any rate are untrue.  The draftsman of\t the
\nwill  has  tried to be overwise’ and that itself is  a\tvery
\nserious infirmity in the appellant’s case that the
\n(1)  Williams  on ” Executors and Administrators  “,  Vol.1,
\n13th Ed.,
\nP. 93.\n<\/p>\n
449<\/span><\/p>\n
instrument  represents\tthe last will and testament  of\t the
\ntestatrix.  Take for instance the statement in the will that
\nthe  testatrix had advanced Rs. 3,000 to her son  to  enable
\nhim to purchase a house at Mysore.  By itself this is not  a
\nmatter\tof very great importance; but this detail  has\tbeen
\nintroduced  in the will in order to make out a\tstrong\tcase
\nthat  all  the\tproperties mentioned in the  will  were\t the
\nseparate  properties of the(, testatrix and so it  would  be
\nrelevant  to consider what the appellant himself has to\t say
\nabout  this recital.  In regard to the Rs. 3,000  in  cross-
\nexamination  the  appellant  has  stated  that\tMr.  B.\t  G.
\nRamakrishna  lyengar had sent this amount to the husband  of
\nrespondent 1 in 1942 or so.  It was sent by cheque on Mysore
\nBank.  The appellant then added that the husband of  respon-
\ndent  1\t had deposited this amount with\t B.  G.\t Ramakrishna
\nIyengar’s  father-in-law  after selling\t Goudanahalli  lands
\nwith  intent to purchase lands at Mysore; so that the  claim
\nmade in the will that the testatrix bad given this amount to
\nher son out of her separate funds is inaccurate.  The manner
\nin  which  the several recitals have been made in  the\twill
\namounts\t  to  a\t suspicious  circumstance  which   must\t  be
\nsatisfactorily explained by the appellant.
\nThe next circumstance which calls for an explanation is\t the
\nexclusion  of the grand-children of the testtatrix from\t any
\nsubstantial  legacies  under the will.\tIt is  true  that  a
\nbequest of Rs. 500 each is given to them but that can hardly
\nbe  regarded  as fair or just to these\tchildren.   It\twas,
\nhowever,  urged\t by  Mr. lyengar  before  us  that  Narayana
\nlyengar\t had,  during  his  lifetime,  given  lands  to\t his
\nsister’s daughters.  He had also spent considerable  amounts
\non  the occasion of their marriages and had given them\teach
\nvaluable  ornaments.  In this connection, he referred us  to
\ncertain documents exhibited under Ex.  I G’ and attempted to
\nshow that the lands given to his sisters’ daughters were  of
\nthe  value of Rs. 1,500 to Rs. 2,000 each.  Apart  from\t the
\nfact that the value of these lands is not clearly proved nor
\nare the circumstances under which they came to be gifted  to
\nthe donees, we
\n57<\/span>
\n450<\/span>
\ndo  not\t think it would be possible to accept  the  argument
\nthat  even  with these gifts the testatrix  would  not\thave
\nthought\t of making more substantial bequests to\t her  grand-
\nchildren.   It is not suggested -that the relations  between
\nthe testatrix and these grand-children were not cordial\t and
\naffectionate  and so it would be reasonable to\tassume\tthat
\nthey  would have been the objects of her bounties in a\tmore
\nliberal measure in ordinary circumstances.
\nThere  is  one more point which must be considered  in\tthis
\nconnection.   As we have already mentioned  the\t appellant’s
\nsons have received substantial bounties under the will.\t Are
\nthese bequests probable and natural ? It must be  remembered
\nthat  the  appellant  came  into the  family  of  Annaji  by
\nadoption  long after the testatrix was married.\t The  record
\ndoes  not show that the testatrix was on  such\taffectionate
\nterms  with the appellant that she would have  preferred  to
\nmake  a\t bequest to his sons rather than to her\t own  grand-
\nchildren.   Indeed  the\t appellant  admitted  that,  at\t the
\nrelevant time, he was in straightened circumstances and\t was
\nindebted  to the extent of nearly, Rs. 30,000; and  it\tdoes
\nnot   appear   that  when  he  was  faced   with   financial
\ndifficulties of this magnitude he asked for or obtained\t any
\nassistance  from  his  adoptive sister.\t  That\tis  why\t the
\nbequests to the appellant’s sons also amount to a suspicious
\ncircumstance   which  must  be\tclearly\t explained  by\t the
\nappellant.   We cannot easily reject the argument urged\t on.
\nbehalf\tof respondent I that the bequests have been made  in
\nthe names of the appellant’s sons because, if they had\tbeen
\nmade  in his own name, the properties bequeathed would\thave
\nbeen  attached\tand  sold at the instance  of  his  numerous
\ncreditors.  We do not propose to measure precisely the value
\nof  the properties bequeathed to the appellant’s  sons.\t  It
\nwould  be  enough to say that the said bequests\t are  by  no
\nmeans  insignificant  or unsubstantial.\t Therefore,  we\t are
\nunable\tto see how the appellant can successfully  challenge
\nthe  finding  of  the  High Court that\tsome  of  the  broad
\nfeatures of the will appear to be improbable and unfair; and
\nif  that  be  so,  the appellant will  have  to\t remove\t the
\nsuspicions arising
\n451<\/span>
\nfrom  these  features before he can persuade  the  court  to
\naccept the instrument as the last will and testament
\nof the testatrix.\n<\/p>\n
In this connection it is necessary to bear in mind that\t the
\nappellant  whose  sons have received the said  bequests\t has
\nadmittedly taken a very prominent part in bringing about the
\nexecution of the will.\tHe has prepared the draft and it was
\nat his dictation that the  scribe wrote the will.  Indeed on
\nthe important question as to when and how instructions\twere
\ngiven  by the testatrix and whether or not in preparing\t the
\ndraft  those instructions have been faithfully carried\tout,
\nthe  only  evidence  adduced  in the case  is  that  of\t the
\nappellant and no one else.  Thus, the very important, if not
\nthe decisive, part played by the appellant in the  execution
\nof the will cannot at all be disputed in the present case.
\nMr. Iyengar, for the appellant, strenuously contended  that,
\nin  deciding whether the suspicions attending the  execution
\nof the will have been removed or not, it would be  necessary
\nto  remember that the whole of the relevant evidence is\t all
\none  way  and  there  is no  evidence  in  rebuttal  led  by
\nrespondent  1. His argument is that the evidence adduced  by
\nthe  appellant\tis satisfactory and the\t conclusion  of\t the
\ntrial  court  which  was well-founded  need  not  have\tbeen
\nreversed  by the High Court.  In support of  this  argument,
\nMr.  lyengar referred us to several judicial  decisions\t and
\nsuggested that we should consider the evidence in the  light
\nof these decisions.  According to him, these decisions would
\nafford\t us   considerable  assistance\t and   guidance\t  in
\nappreciating the evidence in the present case.\tThat is\t why
\nwe  would now briefly refer to some of the  decisions  cited
\nbefore us.\n<\/p>\n
According  to the decisions in Fulton v. Andrew\t (1)  “those
\nwho take a benefit under a will, and have been\tinstrumental
\nin preparing or obtaining it, have thrown upon them the onus
\nof  showing the righteousness of the transaction “. ”  There
\nis  however no unyielding rule of law (especially where\t the
\ningredient of fraud enters into the case) that, when it\t has
\nbeen
\n(1)  [1875) L.R. 7 H. L- 448.\n<\/p>\n
452<\/span><\/p>\n
proved\tthat a testator, competent in mind, has had  a\twill
\nread over to him, and has thereupon executed it, all further
\nenquiry\t is shut out “. In this case, the  Lord\t Chancellor,
\nLord   Cairns,\thas  cited  with  approval  the\t  well-known
\nobservations  of Baron Parke in the case of Barry v.  Butlin
\n(1).   The  two rules of law set out by Baron Parke  are:  ”
\nfirst,\tthat the onus probandi\tlies in every case upon\t the
\nparty\tpropounding  a\twill;  and  lie\t must  satisfy\t the
\nconscience of the court that the instrument so propounded is
\nthe  last will of a free and capable testator”; “the  second
\nis,  that, if a party writes or prepares a will under  which
\nhe  takes  a  benefit, that is\ta  circumstance\t that  ought
\ngenerally  to  excite the suspicion of the court  and  calls
\nupon it to be vigilant and zealous in examining the evidence
\nin support of the instrument in favour of which it ought not
\nto  pronounce  unless the suspicion is removed,\t and  it  is
\njudicially satisfied that the paper propounded does  express
\nthe  true will of the deceased “. It is hardly necessary  to
\nadd  that the statement of these two rules has now  attained
\nthe  status of a classic on the subject and it is  cited  by
\nall  text books on wills.  The will propounded in this\tcase
\nwas  directed  to be tried at the Assizes by  the  Court  of
\nProbate.  It was tried on six issues.  The first four issues
\nreferred to the sound and disposing state of the  testator’s
\nmind and the fifth to his knowledge and approval of the con-
\ntents of the will.  The sixth was whether the testator\tknew
\nand  approved  of  the residuary clause; and  by  this\tlast
\nclause\tthe propounders of the will were made the  residuary
\nlegatees and were appointed executors.\tEvidence was led  at
\nthe  trial and the judge asked the opinion of the jurors  on
\nevery one of the issues.  The jurors found in favour of\t the
\npropounders  on the first five issues and in favour  of\t the
\nopponents  oil the sixth.  It appears that no leave  to\t set
\naside  the  verdict and enter judgment for  the\t propounders
\nnotwithstanding the verdict on the sixth issue was reserved;
\nbut  when the case came before the Court of Probate  a\trule
\nwas  obtained to set aside the verdict generally and have  a
\nnew trial or to set aside the verdict on the
\n(1)  [1838] 2 Moo.  P.C. 480,482.\n<\/p>\n
453<\/span><\/p>\n
sixth  issue for misdirection.\tIt was in dealing  with\t the
\nmerits of the finding on the sixth issue that the true legal
\nposition  came to be considered by the House of Lords.\t The
\nresult of the decision was that the rule obtained for a\t new
\ntrial  was discharged, the order of the Court of Probate  of
\nthe  whole will was reversed and the matter was remitted  to
\nthe Court of Probate to do what was right with regard to the
\nqualified pro. bate of the will.\n<\/p>\n
The  same  principle  was emphasized by\t the  Privy  Council
\nin:Vellasawmy  Servai v. Sivaraman Servai (1), where it\t was
\nheld  that,  where  a  will  is\t propounded  by\t the   chief
\nbeneficiary under it, who has taken a leading part in giving
\ninstructions  for  its\tpreparation  and  in  procuring\t its
\nexecution, probate should not be granted unless the evidence
\nremoves\t suspicion  and\t clearly proves\t that  the  testator
\napproved the will.\n<\/p>\n
In  Sarat Kumari Bibi v. Sakhi Chand (2), the Privy  Council
\nmade  it  clear\t that ” the  principle\twhich  requires\t the
\npropounder  to remove suspicions from the mind of the  Court
\nis  not\t confined only to cases where the  propounder  takes
\npart in the execution of the will and receives benefit under
\nit.   There may be other suspicious circumstances  attending
\non  the execution of the will and even in such cases  it  is
\nthe duty of the propounder to remove all clouds and. satisfy
\nthe  conscience of the court that the instrument  propounded
\nis the last will of the testator.” This view is supported by
\nthe  observations  made\t by Lindley and Davey,\tL.  JJ.,  in
\nTyrrell v. Painton (3).\t ” The rule in Barry v. Butlin\t(4),
\nFulton v. Andrew (5) and Brown v. Fisher (6), said  Lindley,
\nL.  J., ” is not in my mind confined to the single  case  in
\nwhich the will is prepared by or on the instructions of\t the
\nperson\ttaking\tlarge benefits under it but extends  to\t all
\ncases\tin  which  circumstances  exist\t which\texcite\t the
\nsuspicions of the court.”\n<\/p>\n
In Rash Mohini Dasi v. Umesh Chunder Biswas
\n(1)   (1929) L.R 57 I.A. 96.\n<\/p>\n
(3)   [1894] P. 151, 157, 159.\n<\/p>\n
(5)  (1875) L.R. 7 H. L. 448.\n<\/p>\n
(2)  (1928) L.R. 56 I.A. 62.\n<\/p>\n
(4)  [1838] 2 MOO.  P. C. 480, 482.\n<\/p>\n
(6    (1890) 63 L.T. 465.\n<\/p>\n
(7)   (1898) L.R. 25 I.A. 109.\n<\/p>\n
454<\/span><\/p>\n
it  appeared that though the will was fairly simple and\t not
\nvery long the making of it was from first to last the  doing
\nof  Khetter, the manager and trusted adviser of the  alleged
\ntestator.  No previous or independent intention of making  a
\nwill   was  shown  and\tthe,  evidence\tthat  the   testator
\nunderstood the business in which his adviser engaged him was
\nnot  sufficient\t to justify the-grant of probate.   In\tthis
\ncase the application for probate made by the widow of  Mohim
\nChunder\t Biswas was opposed on the ground that the  testator
\nwas  not  in  a sound and disposing state of  mind  at\tthe,
\nmaterial  time and he could not have understood\t the  nature
\nand  effect of its contents.  The will had been admitted  to
\nthe  probate  by the District Judge but the High  Court\t had
\nreversed the said order.  In confirming the view of the High
\nCourt  the Privy Council made the observations to  which  we
\nhave just referred.\n<\/p>\n
The  case of Shama Charn Kundu v. Khettromoni Dasi  (1),  on
\nthe  other  hand, was the case of a will  the  execution  of
\nwhich  was  held  to be not  surrounded\t by  any  suspicious
\ncircumstances.\t Shama\tCharn, the propounder of  the  will,
\nclaimed to be the adopted son of the testator.\tHe and three
\nothers\twere appointed executors of the will.  The  testator
\nleft no natural son but two daughters and his widow.  By his
\nwill  the  adopted son obtained\t substantial  benefit.\t The
\nprobate of the will with the exception of the last paragraph
\nwas  granted  to  Shama Charn by the trial  judge;  but,  on
\nappeal the application for probate was dismissed by the High
\nCourt  on  the ground that the suspicions attending  on\t the
\nexecution of the will had not been satisfactorily removed by
\nShama  Charn.\tThe matter was then taken before  the  Privy
\nCouncil;  and their Lordships held that, since the  adoption
\nof Shama Charn was proved, the fact that he took part in the
\nexecution  of the will and obtained benefit under it  cannot
\nbe  regarded as a suspicious circumstance so as\t to  attract
\nthe rule laid down by Lindley, L. J., in Tyrrell v.  Painton
\n(2).   In  Bai Gungabai v. Bhugwandas Valji.(3),  the  Privy
\nCouncil\t had  to  deal with a will  which  was\tadmitted  to
\nprobate by the first court, but on appeal
\n(1) (1899) I.L.R. 27 Cal. 522.\t(2) [1894] P. 151, 157, 159.
\n(3) (1905) I.L.R. 29 Bom. 530.\n<\/p>\n
455<\/span><\/p>\n
the order was varied by excluding therefrom certain passages
\nwhich referred to the deed-poll executed on the same day  by
\nthe  testator and to the remuneration of the  solicitor\t who
\nprepared the will and was appointed an executor and  trustee
\nthereof.  The Privy Council held that ” the onus was on\t the
\nsolicitor  to  satisfy the court that the  passages  omitted
\nexpressed  the true will of the deceased and that the  court
\nshould be diligent and zealous in examining the evidence  in
\nits support, but that on a consideration of the whole of the
\nevidence  (as  to  which  no  rule  of\tlaw  prescribed\t the
\nparticular  kind required) and of the circumstances  of\t the
\ncase the onus was discharged “. In dealing with the question
\nas  to\twhether\t the testator was aware\t that  the  passages
\nexcluded by the appeal court from the probate formed part of
\nthe  instrument,  the Privy Council  examined  the  evidence
\nbearing\t on the point and the probabilities.  In  conclusion
\ntheir  Lordships differed from the view of the appeal  court
\nthat there had been a complete failure of the proof that the
\ndeed-poll  correctly  represented  the\tintentions  of\t the
\ntestator  or that he understood or approved of its  contents
\nand so they thought that there were no grounds for excluding
\nfrom the probate the passages in the will which referred  to
\nthat  deed.  They, however, observed that it would no  doubt
\nhave  been more prudent and business-like to  have  obtained
\nthe  services of some independent witnesses who\t might\thave
\nbeen trusted to see that the testator fully understood\twhat
\nhe  was doing and to have secured independent evidence\tthat
\nclause\t26  in\tparticular  was\t called\t to  the  testator’s
\nattention.  Even so, their Lordships expressly added that in
\ncoming\tto the conclusion which they had done they must\t not
\nbe  understood\tas  throwing  the  slightest  doubt  on\t the
\nprinciples  laid  down\tin Fulton v. Andrew  (1)  and  other
\nsimilar cases referred to in the argument.
\nIn  Perera v. Perera (2) it was held that when the  testator
\nis  of sound mind when he gives instructions for a will\t but
\nat  the\t time of signature accepts the instrument  drawn  in
\npursuance thereof without being able
\n(1) (1875) L.R. 7 H.L. 448.\t   (2) [1901] A.C. 354.\n<\/p>\n
456<\/span><\/p>\n
to  follow its provisions, he must be deemed to be of  sound
\nmind when it is executed.  The will of Perera with which the
\ncourt was concerned in this case was signed with a cross  by
\nthe  testator in the presence of five witnesses\t present  at
\nthe  same time who duly subscribed the will in the  presence
\nof  the\t testator.   The Notary Public was  also  among\t the
\npersons\t present  but  he  did\tnot  attest  the  will.\t  No
\nobjection  was taken in the court of first instance on\tthis
\nground, but, in the court of appeal, the said objection\t was
\nraised\tand  it was held that the will was  invalid  on\t the
\nground that though the Notary Public was present he had\t not
\nattested  the  instrument.  The case was then taken  to\t the
\nSupreme\t  Court\t in  its  collective  capacity\t on   review
\npreparatory to an appeal to Her Majesty.  The Supreme  Court
\nreversed  the  judgment under appeal and then  proceeded  to
\ndetermine  the\tcase  on the merits.  The court\t held  by  a
\nmajority  decision  that  the  testator\t was  of  sound\t and
\ndisposing  state  of  mind and restored\t the  order  of\t the
\nprimary\t judge.\t Against this decision there was an  appeal.
\nIn  this case, the evidence about the instructions given  by
\nthe testator was very clear; and there was not the slightest
\nreason for disbelieving the statement of Gooneratne that  he
\nhad drawn the will faithfully in accordance with the details
\nof  instructions given to him.\tThe will prepared  from\t the
\nsaid instructions seemed to be fair and just disposition  of
\nthe testator’s property.  There was no concealment about the
\npreparation  of\t the will.  The instructions were  given  on
\nJune 1 and it was in the evening of June 4 that the will was
\nbrought to the testator for execution.\tIt is on these facts
\nthat  it was held, following the observations of  Sir  James
\nHannen\tin Parker v. Felgate (1) that if a person has  given
\ninstructions to a solicitor to make a will and the solicitor
\nprepares it in accordance with those instructions, all\tthat
\nis  necessary  to  make it a good will if  executed  by\t the
\ntestator is that he should be able to think thus far: ” If I
\ngave  my  solicitor instructions to prepare  a\twill  making
\ncertain dispositions about my property I have no doubt\tthat
\nhe has given effect to my intention and I
\n(1)  [1883] 8 P.D. 171.\n<\/p>\n
457<\/span><\/p>\n
accept\tthe document which is put before me as\tcarrying  it
\nout  “. We would again like to emphasize that  the  evidence
\nabout  the instructions was very clear and definite in\tthis
\ncase and it was also clearly established that the will which
\nwas just and fair was executed faithfully in accordance with
\nthe said instructions given by the testator.  In such a case
\nwhether or not the will should be admitted to probate  would
\ndepend\tupon the opinion which the court may form  about the
\nrelevant evidence adduced in support of the will.  It  would
\nbe difficult to deduce any principle from this decision\t and
\nto  seek  to apply it to other cases  without  reference  to
\ntheir facts.\n<\/p>\n
The  last  case\t to  which reference must  be  made  is\t the
\ndecision  of the Privy Council in Harmes v. Hinkson  (1)  It
\nappears that, in this case, the testator George Harmes\tdied
\nin the city of Regina on April 4, 1941.\t Two days later\t Mr.
\nHinkson brought to the manager of the Canada Permanent Trust
\nCompany\t at its office in Regina a document which  purported
\nto  be the will of the said Harmes.  It was dated  April  3,
\n1941,  and named the Trust Company as executor.\t  Under\t the
\nwill Mr. Hinkson by a devise and bequest of the residue\t was
\nto benefit to a sum of more than pound 50,000.\tMr.  Hinkson
\nwas  by profession a barrister and solicitor and  had  drawn
\nthe will with no witness present until after the body of the
\ndocument  was complete.\t Then two nurses were called  in  to
\nwitness\t its  due  execution.\tThe  learned  judge  of\t the
\nSurrogate Court, after a lengthy trial affirmed the will and
\ndecreed\t probate in solemn form.  On appeal, by a  majority’
\ndecision  the order of the trial court was  reversed.\tThen
\nthere  was a further appeal to the Supreme Court of  Canada.
\nIt was heard by five learned judges.  By a majority (Hudson,
\nJ., alone dissenting) the appeal was allowed and the  decree
\nof the Surrogate Court was restored.  Against this  decision
\nthe  appellant\tobtained  special leave\t to  appeal  to\t His
\nMajesty-in-Council  and\t it was urged on  his  behalf  that,
\nsince  the  document  was charged with\tsuspicion  from\t the
\noutset, probate
\n(1)  (1946) 50 C.W.N. 895.\n<\/p>\n
58<\/span>
\n458<\/span><\/p>\n
should not have been granted to the respondent Hinkson.\t The
\nPrivy  Council did not accept this contention and  dismissed
\nthe  appeal.   It  was\tin  dealing  with  the\t appellant’s
\ncontention about the suspicions surrounding the execution of
\nthe  will that Lord Du Parcq made the observations which  we
\nhave  already  quoted.\tPrima facie the facts on  which\t the
\nappellant  relied were strong enough; but the question which
\naccording  to  their  Lordships fell to be  decided  in\t the
\nappeal was whether the learned trial judge’s decision on the
\nfacts  was  erroneous and so manifestly\t erroneous  that  an
\nappellate court ought to set it aside.\tTheir Lordships then
\nreferred  with\tapproval to the principles  which  had\tbeen
\nfrequently enunciated as to the respect which the  appellate
\ncourt  ought  to pay to the opinion which a  Judge  who\t has
\nwatched\t and listened to the witness has formed as to  their
\ncredibility  (Powell  v. Streatham  ManoR  Nursing  Home(1).
\nTheir Lordships then briefly referred to the evidence led in
\nthe  case  and\tobserved that it  was  impossible  for\tthem
\njudging\t only  from the printed page to decide\tbetween\t the
\nvarious\t opinions  of  Mr.  Hinkson’s  character  which\t its
\nperusal may leave open for acceptance by different minds. In
\nthe result they came to the conclusion in agreement with the
\nSupreme\t Court that the trial court’s decision on the  facts
\nmust  stand.  It would thus be noticed that the decision  of
\nthe Privy Council proceeded more on the basis that there was
\nno  justification  for interfering with a  finding  of\tfact
\nrecorded  by  the  trial judge particularly  when  the\tsaid
\n,finding rested on his appreciation of the evidence given by
\nseveral\t witnesses  before him.\t In this  connection  it  is
\nsignificant  to\t note that the allegation of  the  appellant
\nthat  Mr.  Hinkson  had exercised  undue  influence  on\t the
\ntestator  was  repelled\t by  the  Privy\t Council  with\t the
\nobservation that their acceptance of the judge’s findings of
\nfact leaves them no alternative but to reject it.  Thus this
\ndecision  merely serves to illustrate the  importance  which
\nthe  Privy Council attached to the finding of fact  recorded
\nby the trial court in this case.\n<\/p>\n
(1)  [1935] A.C. 243.\n<\/p>\n
459<\/span><\/p>\n
It  is\tin the light of these decisions that  the  appellant
\nwants  us to consider the evidence which he has\t adduced  in
\nthe present case.  It would be convenient to begin with\t the
\nappellant’s  story  about  the\tinstructions  given  by\t the
\ntestatrix  for\tpreparing  the\twill.\tIn  the\t plaint\t the
\nappellant  has\treferred  to  the  sudden  illness  of\t the
\ntestatrix at Mandya and it is alleged that when she took ill
\nthe  testatrix\tsent for him with the obvious  intention  of
\nmaking\tarrangements regarding her properties.\t Accordingly
\nwhen  he met her at Mandya she explained all her  intentions
\nto him in the matter of disposing all her properties and her
\nrights\tthereto.  In other words, the case made out  in\t the
\nplaint\tclearly and specifically is that when the  testatrix
\nwas  ill at Mandya she sent for the appellant and  gave\t him
\ninstructions  for preparing a draft of her  will.   However,
\nwhen  the  appellant  gave  evidence  he  made\ta   material
\nimprovement  in his story.  According to his  evidence,\t the
\nappellant  had\treceived instructions from the\ttestatrix  a
\nyear before the will was actually drafted.  It was then that
\nthe testatrix had given him the gift deed (Ex.\tD) and asked
\nhim  to\t prepare  the draft.   Consistently  with  this\t new
\nversion the appellant has added in his evidence that when he
\nmet  her at Mandya during her illness she reminded him\tthat
\nshe had asked him to make a will for quite some time and she
\ninsisted  that\tthe  draft should be  prepared\twithout\t any
\ndelay.\tIn our opinion, the evidence given by the  appellant
\non this point is clearly an after-thought and his story that
\nhe had received previous instructions cannot be accepted  as
\ntrue.  Besides, it is somewhat remarkable that, on both\t the
\noccasions  when\t the testatrix talked to the  appellant\t and
\ngave instructions to him no one else was present; and so the
\nproof  of this part of the appellant’s case rests solely  on
\nhis  own testimony.  If the testatrix had really thought  of
\nmaking\ta  will\t for  over a year  before  it  was  actually
\nexecuted,  it  is unlikely that she would  not\thave  talked
\nabout it to other relatives including Kalbagal with whom she
\nwas actually staying at the material time.
\nThen it would be necessary to enquire whether the
\n460<\/span>
\ndraft  which the appellant prepared was consistent with\t the
\ninstructions  alleged to have been given by  the  testatrix.
\nThe draft, however, has not been produced in the case on the
\nplea  that  it had been destroyed; nor\tis  it\tspecifically
\nstated\tby the appellant that this draft was read out  fully
\nto the testatrix before be dictated the contents of the will
\nto  the scribe.\t Thus  even the interested testimony of\t the
\nappellant  does\t not show that be obtained approval  of\t the
\ndraft  from the testatrix after reading it out fully to\t her
\nclause by clause.  It is common ground that Mandya where the
\ntestatrix  was lying ill is a place where the assistance  of
\nlocal  lawyers\twould  have been easily\t available;  and  in
\nordinary course the testatrix would have talked to  Kalbagal
\nand the appellant and they would have secured the assistance
\nof  the lawyers for drafting the will; but that is not\twhat
\nthe appellant did.  He went to Mysore and if his evidence is
\nto  be\tbelieved  he prepared the draft\t without  any  legal
\nassistance.   Having  regard to the nature of  the  recitals
\ncontained in the will it is not easy to accept this part  of
\nthe  appellant’s  case.\t Besides, as we have  already  indi-
\ncated,\twe  find  great difficulty  in\tbelieving  that\t the
\nelaborate  recitals  could  have  been\tthe  result  of\t the
\ninstructions given by the testatrix herself.
\nIt  is in the light of these circumstances that\t the  direct
\nevidence  about\t the  execution\t of  the  will\thas  to\t  be
\nconsidered.  The evidence of P. W. I is really\tinconclusive
\non  the point about the execution of the will.\t Apart\tfrom
\nthe  fact  that\t he had no clear  recollection\tas  to\twhat
\nhappened on the day when he attested the will, this  witness
\nhas  frankly  stated  that he  could  not  state  definitely
\nwhether\t the  whole  of the document was read  over  to\t the
\ntestatrix before he put the attesting signature; and it\t was
\nnaturally  of very great importance in this case to  produce
\nsatisfactory  evidence\tthat the will was read\tout  to\t the
\ntestatrix  and she understood the nature and effect  of\t its
\ncontents.  On this point even if P.W. I is believed it\tdoes
\nnot  help  the\tappellant’s case.  The evidence\t of  P.W.  2
\ncannot carry much weight because his main story that he\t was
\npresent at the time when the will
\n461<\/span>
\nwas  written is wholly inconsistent with the evidence of  P.
\nWs.  3, 4 and 7. That leaves the evidence of the scribe\t and
\nthe  appellant\thimself.   The scribe (P.W.  3)\t is  a\tnear
\nrelation of Kalbagal and even he does not at all support the
\nappellant’s   case  about  previous   instruction   because,
\naccording to him, the testatrix said that she would agree to
\nwhatever  the  appellant would get  written.   The  relevant
\nevidence  of this witness is clearly inconsistent  with\t the
\nappellant’s case about previous instructions and so it would
\nbe difficult to treat the evidence of this witness as suffi-
\ncient  to  prove  that the testatrix  fully  understood\t the
\nnature of the recitals in the preamble and the effect of the
\ndispositions before she put her signature to the will.\t The
\nevidence  of  the  appellant (P.W. 7)  cannot  obviously  be
\nuseful\tbecause it is the evidence of an interested  witness
\nand  is\t besides not very satisfactory.\t On  behalf  of\t the
\nappellant  it  was urged before us by Mr. Iyengar  that\t the
\nevidence  of Kalbagal (P.  W. 4) is disinterested and so  it
\nshould be believed.  That also appears to be the view  taken
\nby  the trial court.  In our opinion, however, it would\t not
\nbe   right  or\tcorrect\t to  describe  Kalbagal\t as   wholly
\ndisinterested.\tRespondent No. 5 who is the step-brother  of
\nKalbagal and who stays with him in the same house along with
\ntheir  father  has admittedly received\tsubstantial  benefit
\nunder  the  will.   If an undivided brother of\tP.W.  4\t has
\nreceived  this benefit it would not be accurate to say\tthat
\nthe  witness is wholly disinterested.  Besides,\t it  appears
\nfrom the evidence of Kalbagal that he knew nothing about the
\nexecution  of the will until the appellant asked him to\t get
\nsome  attesting witnesses for the will.\t This evidence\tdoes
\nnot  strike  us as natural or probable; but apart  from\t it,
\neven  Kalbagal’s evidence does not show satisfactorily\tthat
\nthe  will was read out to the testatrix so as to enable\t her
\nto  understand its full effect before it was signed by\ther.
\nThat  is the whole of the evidence led by the  appellant  on
\nthe question of the execution of the will.  On this evidence
\nwe are not prepared to hold that the High Court was in error
\nin  coming to the conclusion that it was not shown that\t the
\ntestatrix fully
\n462<\/span>
\nunderstood the contents of the will and put her signature on
\nthe   instrument  intending  that  the\trecitals   and\t the
\ndispositions  in  the  will  should  be\t her  recitals\t and
\ndispositions.\n<\/p>\n
In  this  connection we would like to add that\tthe  learned
\ntrial  judge  appears  to have misdirected  himself  in\t law
\ninasmuch  as he thought that the proof of the  signature  of
\nthe testatrix on the will raised a presumption that the will
\nhad  been  executed  by her.  In support of  this  view\t the
\nlearned\t judge has referred to the decision of the  Calcutta
\nHigh  Court  in\t Surendra Nath Chatterji  v.  Jahnavi  Charn
\nMukerji (1).  In this case no doubt the Calcutta High  Court
\nhas held that on the proof of the signature of the  deceased
\nor his acknowledgment that he has signed the will he will be
\npresumed  to have known the provisions of the instrument  he
\nhas  signed; but Mr. Justice B. B. Ghose, in  his  judgment,
\nhas  also  added that the said presumption is liable  to  be
\nrebutted  by  proof  of suspicious  circumstances  and\tthat
\nundoubtedly is the true legal position.\t What  circumstances
\nwould be regarded as suspicious cannot be precisely  defined
\nor  exhaustively  enumerated.  That inevitably\twould  be  a
\nquestion  of fact in each case.\t Unfortunately\tthe  learned
\ntrial judge did not properly assess the effect of suspicious
\ncircumstances  in the present case to which we have  already
\nreferred and that has introduced a serious infirmity in\t his
\nfinal  conclusion.   Incidentally we may also refer  to\t the
\nfact  that the appellant obtained a power of  attorney\tfrom
\nthe  testatrix on the same day ; and that has given rise  to
\nthe   argument\tthat  the  appellant  was  keen\t on   taking
\npossession  and\t management  of\t the  properties  under\t his
\ncontrol\t even before the death of the testatrix.   There  is
\nalso another circumstance which may be mentioned and that is
\nthat  the SubRegistrar, in whose presence the  document\t was
\nregistered on the same day, has not been examined though  he
\nwas alive at the date of the trial.  On these facts then  we
\nare  inclined to hold that the High Court was  justified  in
\nreversing the finding of the trial court oil the question of
\nthe due and valid execution of the will.\n<\/p>\n
(1)  (1928) I.L.R., 56 Cal. 390.\n<\/p>\n
463<\/span><\/p>\n
Before we part with this case, however, we would like to add
\nthat  the  High\t Court was not justified  in  recording\t its
\nfindings  on two other issues in the present appeal.  As  we
\nhave  already indicated, the High Court itself has  observed
\nthat, once it was held that the will had not been proved  by
\nthe  appellant, no other issue survived for decision.\tEven
\nso,  the High Court has expressed its conclusions in  favour
\nof res-pondent I on the question about the character of\t the
\nsubsequent  acquisitions of items 3, 4 and 5 and  about\t the
\nsubsisting  title  of the testatrix in respect\tof  all\t the
\nproperties  covered  by\t the will.   Having  regard  to\t the
\nrelationship  between the parties it is difficult to  under-
\nstand  how  mere entries in the revenue record made  in\t the
\nname   of   Sadagopalachar  or\tthe   long   possession\t  of
\nSadagopalachar and, after his death, of Narayana lyengar can
\nprove  the transfer of Lakshmamma’s title or its  extinction
\nby adverse possession respectively.  It is apparent that, in
\nrecording these conclusions, the High Court has not fully or
\nproperly   considered\tall  the  relevant   evidence;\t and
\nconsequently,  the reasons given by it are open\t to  serious
\nchallenge  on the merits.  Indeed Mr. Viswanatha Sastri\t did
\nnot appear to be inclined to support the said findings.\t  We
\ndo  not, however, propose to decide these questions  on\t the
\nmerits\tbecause in view of our conclusion on  the  principal
\nissue  it is unnecessary to consider any other\tpoints.\t  We
\nwould,\ttherefore, like to make it clear that the  said\t two
\nissues\tare not decided in the present proceedings  and\t may
\nhave to be considered afresh between the parties if and when
\nthey arise.\n<\/p>\n
The  result  is the appeal fails and must be  dismissed\t but
\nthere will be no order as to costs in this Court.\n<\/p>\n
\t\t\t Appeal dismissed.\n<\/p>\n
464<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958 Equivalent citations: 1959 AIR 443, 1959 SCR Supl. (1) 426 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-14834","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nH. Venkatachala Iyengar vs B. N. 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