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PETITIONER: GORANTLA THATAIAH

       Vs.

RESPONDENT: THOTAKURA VENKATA SUBBAIAH & ORS.

DATE OF JUDGMENT: 19/03/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. MITTER, G.K.

CITATION:  1968 AIR 1332            1968 SCR  (3) 473

ACT: Will-Propounder  taking prominent part, in execution of  and receiving  benefit  under-Principles regarding  scrutiny  of evidence  of execution and sound disposing state of mind  of testator.

HEADNOTE: One  V  lost his father when he was only 10 years  old  and. thereafter lived along with his mother, in the- house of the first  defendant  who  was his maternal  uncle.   The  first defendant  had considerable influence over V as he was  slow witted  and  below the average level  of  intelligence  and, understanding.   V  died when he was 24 years old.   A  few. days  before  his  death  he executed a  will  by  which  he bequeathed  his  entire  property  to  the  first  defendant absolutely  with  a  direction that  his  mother  should  be maintained,  and that, even if his mother  lived  separately from  the  first  defendant, she was to  have  only  a  life interest  in  certain  items which were  also  to  be  taken absolutely  by the first defendant after her death.  At  the time  of  the execution of the -will V was physically  in  a weak condition. The first defendant took a prominent part in summoning  the  attesting witnesses and the  scribe  and  in Procuring, writing materials for the execution of the  will. Evidence was given on behalf the first defendant that though V was delirious on the day previous to the execution of  the will  and  also subsequent to that date, V was in  a  normal condition on the date of the execution of the will. On the question of the validity of the will, HELD : The will was not executed in a sound disposing  state of mind and was therefore not legally valid. [480,A-B] In  a  case in which a will is prepared  under  circumstance which  raise  the suspicion of the court that  it  does  not express  the  mind  of  the testator it  is  for  those  who -propound  the  will  to remove that  suspicion.   What  are suspicious  circumstances  must be judged on the  facts  and circumstances  of  each particular case.  If,  however,  the Propounder  takes a prominent part in the execution  of  the will  which confers substantial benefits on him that  itself is a suspicious circumstance attending the execution of  the will  and in appreciating the evidence in -such a  case  the

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court  should  proceed in a vigilant and  cautious,  manner. [477 R; 478 A-B] Barry  v.  Butlin, (1838) 2 Moo.  P.C. 480, 482,  Fulton  v. Andrew,  (1875) L.R. 7 H.L. 448, Tyrrell v. Painton,  (1894) P.  151,  157, 159 and Sarat Kumari Bibi v.  Sakhi  Chand  & Ors., 56 I.A. 62, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 431 of 1965. Appeal from the judgment and decree dated August 22, 1963 of the Andhra Pradesh High Court in Appeal No. 554 of 1959. H. R. Gokhale and K. R. Chaudhuri, for the appellant. D. Narsa Raju, S. T. Desai, A. Vedavalli and A. V. Rangam for the respondents. 474 The Judgment of the Court was delivered by Ramaswami,  J. This appeal is brought by certificate on  be- half of the plaintiff from the judgment of the High Court of Andhra  Pradesh in Appeal Suit No. 554 of 1959 dated  August 22, 1963. One Gorantla Tathiah, as the, sole plaintiff, filed O.S. No. 2 ,of 1957 in the Court of the Subordinate Judge’.   Bapatla for possession of certain properties which had been left  by Gorantla  Veeriah when he died issueless on June  24,  1939. Originally,   there  were  ten  defendants  in   the   suit. Defendant  no.  1  is  the maternal  uncle  of  Veeriah  and Defendant  no.  2  and Defendant .no. 3  are,  the  sons  of Defendant  no. 1. Defendants nos. 4 to 8 were  the  alienees from Defendant no. 1’s family.  Defendants nos. -7, 9 and 10 did  not  contest  the suit.  Defendant no. 8  died  in  the ,course of the suit and his legal representatives were added as  Defendants I I to 14.  Defendants 1 to 3  contested  the suit on the ,ground that Defendant no. 1 became entitled  to the  properties  of Veeriah under the will, Ex.   B-4  dated June, 17, 1939 which Veeriah executed in his favour.  It was contended  in  the alternative -that at the  time  when  the reversion opened on the death of Veeriah’s mother,  Rattamma on October 1, 1956, Defendant no. 1 was the nearest heir and not  the plaintiff, under the Hindu Succession Act  (XXX  of 1956)  which had come into force on October 17,  1956.   The Additional  Subordinate Judge, Bapatla held’ that  the  will was true and genuine but it was not legally valid as it  was executed  by Veeeriah at a time when he had no  testamentary capacity.   It was also held that the Hindu  Succession  Act did  not  apply to the facts of the  case.   The  Additional Subordinate   Judge   accordingly  granted  a   decree   for -possession  of properties except -item no. 4 in favour  of. the plaintiff as against Defendants nos.  I to 3, 6, 7 and I I to 14.  Defendants I to 3, 7, 1 1 and 1 3 took the  matter in  appeal  to  the  High  Court  of  Andhra  Pradesh.   The plaintiff also Preferred a Memorandum of Cross Objections to the  -,extent the trial Court’s decree was against him.   By its  judgment dated August 22, 1963, the High Court  allowed the appeal, holding that the will, Ex.  B-4 was executed  by Veeriah in a sound and disposing state of mind and that  the will was not only true but was -valid and binding upon  the, plaintiff.   The High Court accordingly dismissed the  suit. The Memorandum of Cross Objections was also dismissed. The  first  question  to be considered  in  this  appeal  is whether  the  will, Ex.  B-4 was true and  genuine  and  was executed by Veeriah in a sound and disposing state of mind. It  is not disputed that one Gangiah died leaving his  widow Rattamma  and his only son through her called Veeriah and  a

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-young daughter.  The girl died without leaving any issue in the  -year  1932.  Veeriah was a little boy and  it  is  not disputed that 475 he  was  below average, in intelligence  and  understanding. Rattamma  alongwith  her  son took  up  residence  with  her brother,  Defendant no. I who was a man of great wealth  and influence  in the. village, owning fifty acres of  land  and outstanding   credits  to  the  extent  of   Rs.   20,600/-. Rattamma’s  husband had left properties to the extent of  13 acres of land.  In spite of owning so much property  Veeriah was engaged as a cow-boy in tending  cattle.  In June  1939, he  had  an attack of typhoid, became bed-ridden  and  ulti- mately  died of the disease on June 24, 1939.  The  case  of the  contesting  defendants was that  Veeriah  executed  the will,  Ex.  B-4 on June 17, 1939, that D.W. 4 wrote  it  and nine  witnesses attested it but the will was not  registered in Veeriah’s life-time.  On October 15, 1939, defendant  no. 1. and Raittamma presented the will, Ex. B-4 before the Sub- Registrar,  Chirala  for registration.   The  Sub-Registrar, however, refused to register the, will by his order, Ex.  A- 45  in W.C. 4 of 1939.  Defendant no. 1 preferred an  appeal before  the  District Registrar, Guntur but the  appeal  was dismissed.   Defendant  no.  I then filed O.S. no.   III  of 1940  in  the  court of  District  Munsif,  Bapatla  against Ramayya  (father of defendants 9 and 10), the plaintiff  and Rattamma for a direction for registration of the will.   The District  Munsif returned the will to defendant no.   I  for want of pecuniary ,jurisdiction.  Defendant no. 1  presented it to the Subordinate Judge, Bapatla and got it numbered  as O.S.  no. 6 of 1941.  The suit was ultimately  dismissed  by the Subordinate Judge on the question of limitation.  Defen- dant  no.  1 and Rattamma filed O.S. no. 13 of 1942  in  the Subordinate  Judge’s court, Bapatla for a  declaration  that the  will  was genume and valid.  Ramayya  filed  a  written statement  and the suit was ultimately decreed in favour  of Defendant  no.   I  and Rattamma.   The  present  plaintiff, Gorantla Tathaiah was, however, not a party to that suit. In  the  will,  Ex.  B-4 it is stated  by  the  testator  as follows               "...  Typhoid  condition has set  in.   As  no               treatment  has been effective in  curing  this               condition  I have lost confidence that I  will               survive.  Therefore I have wholeheartedly made               the following disposition regarding my movable               and  immovable properties in order that  there               may  be  no  obstruction in  future  from  any               source whatsoever.               That  my mother Rattamma should be  maintained               comfortably for her life-time and.that in case               there  is  disagreement  between  her  and   I               material  uncle.   Venkatasubbayya  and   they               decide   to   live  separately,   my   mother,               Rattamma,  should  enjoy  the  income  of  the               property  mentioned  in ’B’ Schedule  for  her               life-time  without  exercising any  powers  of               disposition  by way of gift, sale  etc.,  over               the property and that after her life. L7 Sup.  C.I./68-6 476               time.  the  entire property mentioned  in  ’B’               schedule should devolve in my maternal  uncle,               Venkatasubbayya.     My    maternal     uncle,               Venkatasubbayya   shall   enjoy   the   entire               properties mentioned in ’A’ and ’B’  Schedules

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             with absolute powers of disposition by way  of               gift, sale etc." In  the will it is mentioned that Veeriah had sold his  land on  May 30, 1939 to defendant no. 4 and received an  advance of  Rs.  165/with the stipulation that the balance  of  sale price should be paid at the time of registration.   Veeriahl also  said  that  in  case he  did  not  live  long  enough, defendant  no.  1 should complete the sale  transaction  and receive the balance of price from defendant no. 4. The  will was written by one Ammanamanch Sambiah, D.W. 4 the karnam of the village.  There are 9 attesting witnesses of whom  three are dead.  On behalf of the plaintiff two of the;  attestors P.Ws. 8 and 9 were examined and two attesting witnesses were examined as Court witnesses I and 2. On behalf of defendants two attesting witnesses D.v. I and 6 besides the scribe D.W. 4  gave evidence.  P.W. 8 deposed that the testator did  not give any instructions or particulars for drafting the  will. The  testator was very weak and in a delirious state and  he was  not  in a position to put his thumb impression  to  the will.   P.W.  9 is stone deaf and he could not  give  proper evidence.  He did not remember if Veeriah was raving and was tearing his clothes.  D.Ws. 1, 4, 6 and 14 and C.Ws. 1 and 2 say that the testator was in a sound and disposing state of- mind.   It was the testator who gave instructions  regarding the  disposition of the properties.  D.W. 4 wrote  the  will and  read it over to Veeriah who approved of it and put  his thumb impression thereon.  The evidence of P.Ws. 8 and 9  is therefore  clearly in conflict with the evidence of C.Ws.  I and 2 and D.Ws. 1, 4, 6 and 14.  The evidence of C.Ws. I and 2  is interested.  It is admitted that C.W. I is related  to defendant  no.  1  and  C.W. 2  is  indebted  to  the  first defendant to the extent of Rs. 1,400/-.  As regards D.Ws. 1, 4  and 6, the trial court has remarked that their  testimony is  not impartial and we see no reason to take  a  different view  as regards the effect of their testimony.  So  far  as D.W. 1 is concerned, he appears to have khatha dealings with the  first defendant.  D.W. 4 admitted that he and  Venkata- swamy  were  good friends and worked as karnam  and  Village Munsif  for 30 years.  There was a case of  misappropriation against  Venkataswamy  and D.W. 4 deposed in his  favour  in that  case.   It is in evidence that D.W. 6  is  related  to Ambati  Veeriah  who is married to  the,  first  defendant’s niece.   With  regard to P.Ws. 8 and 9 the  High  Court  has remarked that they had attested the will without any protest or  adding any note Of protest though the testator,  Veeriah was  not  in  a  sound state of mind  at  the  time  of  the execution of the will.  In our opinion, this circumstance is of  no consequence and the High Court was not  justified  in reject- 477 ing the evidence of P.Ws. 8 and 9 on this ground alone.   On the  other  hand, there are two important  features  in  the present case which throw a great deal of doubt as to whether the  testator was in a sound and disposing state of mind  at the time of the execution of the will.  It is- the  admitted position that, the first defendant took a prominent role  at the  time  of  the execution of the will  by  summoning  the scribe and the attesting witnesses.  It is stated by D.W.  1 that   the  first  defendant,  also  procured  the   writing materials   and  the  black  ink  for  affixing  the   thumb impressions of the witnesses.  It is also admitted that  the will preferred the first defendant to the mother.  Normally, the  testator would have bequeathed all )us property to  the mother  and would- have also given her power to adopt a  boy to perpetuate the lineage of the family.  Instead the mother

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was given, in the will, a life interest in items 1 and 6 and the  rest  of  the  properties  were  given  absolutely   to defendant  no. 1. It is undisputed that the testator was  24 years  of age at the time of the execution of the  will  and that he was far below the average level of intelligence  and understanding  and  nobody was prepared to offer a  girl  in marriage  to  him.   There  is  evidence  that  Veeriah  was "lacking  in  wits"  and that he was  employed  for  tending cattle.   Further  more,  the testator  was  suffering  from typhoid  fever at the time of the execution of the will  and he  died a week thereafter i.e., on June 24, 1939.   In  Ex. B-4 it is recited that the testator was ailing for about  15 days and had become delirious.  According to D.W. 4 when  he arrived  Veeriah  was  lying on a cot and he was  not  in  a position  to  sit up by himself.  Both D.Ws. I and  4  admit that the attesting witnesses and the scribe had all bled and waited  for nearly an hour, Both P.Ws. 8 and 9 say  that  at the  time  of the execution of the will.  Veeriah was  in  a delirious  state.   D.Ws, 1, 4, 6, 14 and C.W. I  all  admit that  the testator was delirious on the-day previous to  the execution of the will and also subsequent to the day of  the execution of the will.  These witnesses, however, state that the testator, was quite all right and in normal condition on the  date of the execution of the will.  It is difficult  to accept this part of the defence evidence.  Considering  that the  condition of the testator became, worse and he  died  a week  thereafter it is difficult to accept the, evidence  of defence witnesses and of CW.  I that the testator was, in  a sound state of mind on the date of the execution of the  win but he was in a delirious ’state the day before and the  day after  the  execution  of the will.   In  our  opinion,  the Subordinate  Judge  was  right in his  conclusion  that  the testator was physically weak and in a delirious mental state at the time of the execution of the will.  We think the High Court  had no justification for reversing the view taken  by the Subordinate Judge on this point. It  is  well-established that in a case in which a  will  is prepared  under circumstances which raise the  suspicion  of the court that it does not express the mind of the  testator it is for those who pro- 478 pound   the  will  to  remove  that  suspicion.   What   are suspicious  circumstances  must be judged in the  facts  and circumstances  of  each particular case. -If,  however,  the propounder  takes a prominent part in the execution  of  the will  which confers substantial benefits on him that  itself is  a suspicious circumstance attending-7 the  execution  of the  will and in appreciating the evidence in such  a  case, the court should proceed in a vigilant and cautious  manner. It    is   observed   in   Williams   on   "Executors    and Administrators", Vol. I, 13th Ed., p. 92:               "Although the rule of Rom an Law that ’Qui  se               scripsit haeredem’ could take no benefit under               a  will  does  not  prevail  in  the  law’  of               England,  yet, where the person  who  prepares               the instrument, or conducts its execution,  is               himself benefited by its dispositions, that is               a circumstance which ought generally to excite               the suspicion of the court, and calls on it to               be  vigilant  and  zealous  in  examining  the               evidence  in  support  of  the  instrument  in               favour  of  which it ought not  to  pronounce,               unless  the  suspicion is removed, and  it  is               judicially  satisfied  that  the  paper   does               express the true will of the deceased."

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According to the decision in Fulton v. Andrew(’), "those who take  a benefit under a will, and have been instrumental  in preparing or obtaining it, have thrown upon them the onus of showing,  the righteousness of the transaction ". "There  is however  no  unyielding rule of law  (especially  where  the ingredient of fraud enters into the case) that, when it  has been  proved that a testator, competent in mind, has  had  a will  read over to him, and has thereupon executed  it,  all further  enquiry  is  shut out".  In  this  case,  the  Lord Chancellor,  Lord Cairns, has cited with approval the  well- known  observations of Baron Parke in the case of  Barry  v. Butlin (2).  The two rules of law set out by Baron Parke are : "first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is- the  last will of a free and capable testator"; "the second is,  that, if a party *rites or prepares a will under which he takes  a benefit,  that  is a circumstance that  ought  generally  to excite  the suspicion of the court and calls upon it  to  be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to  pronounce unless  the  suspicion  is removed,- and  it  is  judicially satisfied  that the paper propounded does express  the  true will of the deceased." In Sarat Kumari Bibi v. Sakhi Chand & Ors.,  (3)  the Judicial Committee made it clear  that  "the principle which requires the propounder to remove suspicions from  the  mind of the Court is not confined only  to  cases where the propounder takes part in the (1)  (1875) L.R.7H.L.448.  (2) (1838) 2 Moo. P.C.480,482. (3)  56 I.A. 62. 479 execution of the will and receives benefit under it.   There may  be  other  suspicious circumstances  attending  on  the execution of the will and even in such cases it is the  duty of  the  propounder  to remove all clouds  and  satisfy  the conscience  of the court that the instrument  propounded  is the  last will of the testator." This view is  supported  by the  following  observations made by Lindley and  Davey,  L. JJ., in Tyrrell v. Painton(1):               "The  rule in Barry v. Butline (2  Moo.   P.C.               480);  Fulton  v. Andrew [(1875)  L.R.  7,H.L.               448]; and Brown v. Fisher [(1890) 63 L.T. 465]               is not, in my opinion, confined to the  single               case in which a will is prepared by or on  the               instructions of the person taking large  bene-               fits  under  it, but extends to all  cases  in               which  circumstances  exist which  excite  the               suspicion  of  the Court;  and  wherever  such               circumstances exist, and whatever their nature               may be, it is for those who propound the  will               to remove such suspicion and to prove affirma-               tively that the testator knew and approved  of               the  contents of the document, and it is  only               where this is done that the onus is thrown  on               those  who oppose the will to prove  fraud  or               undue influence, or whatever else they rely on               to  displace  the case made  for  proving  the               will." (Lindley, L.J.).               "It  must  not be supposed  the  principle  in               Barry v Butlin (2 Moo.  P.C. 480) is  confined               to  cases  where the person who  prepares  the               will is the person who takes the benefit under               it-that is one state of things which raises  a               suspicion; but the principle is that  wherever               a  will is prepared under circumstances  which

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             raise  a well grounded suspicion that it  does               not express the mind of the testator the Court               ought not to pronounce in favour of it  unless               that suspicion is removed." (Davey, L.J.). It  is  in the light of these principles that  the  evidence adduced in this case will have to be considered.  As we have already  pointed  out, there is abundant testimony  in  this case  which  proves  ’beyond doubt  that  the  testator  was physically  in  a  weak  condition and  that  he  was  in  a delirious state of mind at the time of the execution of  the will.   It  is  admitted that the  first  defendant  took  a prominent part in summoning the attesting witnesses and  the scribe  and  in  procuring the  writing  materials  for  the execution of the will.  There is also evidence that  Veeriah lost his father, Gangiah when he was hardly 10 years of  age and  after  Gangiah’s  death  the  first  defendant  brought Rattamma  and  Veeriah to his house and  was  looking  after them.,  The  first  defendant  had  therefore   considerable influence over Veeriah and his mother Rattamma. (1) (1894) P. 151,157,159. 480 There  is  also the circumstance that Veeriah  was  only  24 years of age at the time of the execution of the will and he was slow witted and below the average level of  intelligence and  understanding.  Having regard to the cumulative  effect of  all the circumstances we are of opinion that  the  will, Ex.   B-4  was  not  executed by  Veeriah  in  a  sound  and disposing  state  of  mind and was  not  legally  valid  and binding  upon the plaintiff.  We accordingly set  aside  the finding of the High Court on this issue. It  is, however, not possible for us to finally  dispose  of this  appeal  because the High Court has  not  examined  the second  question arising in this case, namely,  whether  the Hindu Succession Act (Act XXX of 1956) is applicable to  the case  and  whether defendant no. 1 was the nearest  heir  to succeed to the estate of the deceased Veeriah in  preference to all others including the appellant, defendants 9 and  10. We  therefore consider it necessary that the case should  go back  to the High Court for hearing the parties  afresh  and recording  a  finding on this question and to submit  it  to this  Court within three months from the date of receipt  of the  record  by  the High Court.  The parties  will  not  be allowed to give additional evidence in the case and the High Court will submit a finding on the evidence already  adduced by  the  parties.   The appeal will be  placed  for  further hearing before this Court after the finding is submitted  by the  High  Court in accordance with the directions  we  have given. V.P.S.                         Appeal remanded. 481