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PETITIONER: H. VENKATACHALA IYENGAR

       Vs.

RESPONDENT: B. N. THIMMAJAMMA & OTHERS

DATE OF JUDGMENT: 13/11/1958

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SARKAR, A.K.

CITATION:  1959 AIR  443            1959 SCR  Supl. (1) 426  CITATOR INFO :  R          1962 SC 567  (5)  F          1964 SC 529  (4)  F          1965 SC 354  (9,11)  F          1971 SC2236  (5)  F          1974 SC1999  (7)  F          1977 SC  63  (9)  R          1977 SC  74  (10)  R          1982 SC 133  (7)  RF         1987 SC 767  (2)  F          1990 SC 396  (21)  E&R        1990 SC1742  (3)

ACT: Will-Mode of proof-Onus-Suspicious circumstances-Removal  of such suspicion, if part of the initial burden on the  propo- under-Indian Evidence Act, 1872 (1 Of 1872), ss. 45, 47, 67, 68--Indian Succession Act, 1925 (XXXIX Of 1925), ss. 59, 63.

HEADNOTE: The  mode of proving a will does not ordinarily differ  from that of proving any other document except as to the  special requirement of attestation prescribed in the case of a  will by s. 63 of the Indian Succession Act.  Proof in either case cannot be mathematically precise and certain and so the test should  be  one of satisfaction of a prudent  mind  in  such matters.  The onus must be on the propounder and in  absence of suspicious circumstances surrounding the execution of the will,  proof of testamentary capacity and signature  of  the testator  as required by law may be sufficient to  discharge the onus. Where, however, there are suspicious circumstances, the onus would  be  on the propounder to explain them to  the  satis- faction  of  the Court before the will can  be  accepted  as genuine.  If the caveator alleges undue influence, fraud  or coercion  the onus will be on him to prove the same.   Where there  are no such pleas but the circumstances give rise  to such  doubts,  it  is  for the  propounder  to  satisfy  the conscience of the Court. What  are  suspicious circumstances must be  judged  in  the facts  and  circumstances of each particular case.   If  the propounder  takes a prominent part in the execution  of  the

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will which confers substantial benefits on him, that  itself is a suspicious circumstance attending the execution of  the will  and in appreciating the evidence in such a  case,  the court should proceed with an open but nevertheless  vigilant and cautious mind. Harmes  v. Hinkson, (1946) 50 C.W.N. 895, Fulton v.  Andrew, (1875) L.R. 7 H.L. 448, Barry v. Butlin, [1838] 2 MOO.  P.C. 480,  Vallasamy Servai v. Sivaraman Servai, (1929)  L.R.  57 I.A. 96 and Sarat Kumar Bibi v. Sakhi Chand, (1928) L. R. 56 1. A. 62, referred to. Case-law discussed. In the instant case the appellant, as the sole executor to a will, brought the suit out of which the appeal arises, for a declaration  that  the testatrix was the  owner  of  certain properties  and was as such entitled to dispose of  them  by the  will and asked for consequential reliefs purporting  to give  effect to the bequests made by her.  It appeared  from the  evidence that the appellant took a prominent, if not  a decisive, part in the execution of the 427 will, which contained substantial bequests in favour of  his sons.  But there was no evidence to show that the draft  was ever  approved by the testatrix or that the will  was  fully read out to her and she knew its contents.  The trial  court decreed the suit but the High Court dismissed the same. Held,  that  the High Court was right in setting  aside  the finding  of the trial court that the will had been duly  and validly executed. Held  further, that the trial court was in error in  holding that the proof of signature in the instant case could  raise a presumption as to the testator’s knowledge of the contents of the will. Surendra  Nath Chatterji v. Jahnavi Charan Mukherji,  (1928) I.L.R 56 Cal. 390, explained and approved.

JUDGMENT:    CIVIL APPELLATE JURISDICTION: Civil Appeal No.18 of 1955. Appeal from the judgment and decree dated March 20, 1651, of the  Mysore High Court in R.A. No. 155 of  1947-48,  arising out  of the judgment and decree dated December 19, 1947,  of the  Court  of Sub_Judge, Mysore, in 0. S. Suit  No.  44  of 1946-47. S.   K. Venkataranga Iyengar and K. Keshava Iyengar, for the appellant. A.   V. Viswanatha Sastri and K. R. Choudhry, for respondent No. 1. 1958.  November 13.  The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal arises from a suit brought by the appellant in the court of the Subordinate Judge, Mysore, as  the  sole  executor of the will  alleged  to  have  been executed by one Lakshmamma on August 22, 1945, (Ex.  A).  In this suit the appellant claimed a declaration that the  said Lakshmamma was the owner of the properties mentioned in  the schedule attached to the plaint and as such was entitled  to dispose  of them by a will; and be asked  for  consequential reliefs  purporting to give effect to the bequests  made  by the  said  will.   The  schedule  attached  to  the   plaint describes  the  properties covered by the  will  under  five items.  First three items in the schedule refer respectively to  5,  4  and 4 agricultural lands  at  Hampapura  village, whereas the fourth item includes 428

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9 lands at Arjunahalli village and the last item is.& vacant site  in Hampapura village.  According to the plaint,  under the  will respondent I was entitled only to a life  interest in items I and 2 and that on her death the said items  would vest  in respondents 2 to 4 and respondent  5  respectively. Since respondent 1 was in possession of all the five  items, the  appellant  claimed  a  decree  for  possession  against respondent  1  in  respect  of  items  3,  4  and  5  and  a declaration  that  respondent  I was to  have  only  a  life interest in items 1 and 2. By his plaint the appellant  also claimed  to  recover Rs. 2,106 which had been  collected  by respondent  1  by way of income from the suit  lands  and  a further  prayer  was made for the payment of  current  mesne profits by respondent 1. Before referring to the pleadings of the parties it would be relevant  to mention the material facts in regard  to  their relationship  which are not in dispute.  One Annaji  lyengar who  died in July 1903 left behind him his adopted son,  the appellant,  and two daughters Gundamma alias  Ranganayakamma who  is  still  alive and Lakshmamma alias  Achamma  who  is alleged  to  have  executed  the  will  in  suit  and   died thereafter on September 26, 1945, at Mandya.  Respondents  2 to 4 are the sons of the appellant.  Lakshmamma was  married to Sadagopalachar who died in December 1908.  The couple had three  children,  a son named Narayana lyengar who  died  on January 14, 1944, without any issue and left behind him  his widow  respondent  1  ; and the two  remaining  children  of Lakshmamma  were  daughters  Thirumalamma  and  Yadugiramma. Both  of them are dead.  Thirumalamma was married to one  G. Parthasarathy  lyengar  by  whom  she  had  a  son  of  weak intellect, who died pending litigation, and three  daughters Neelu,  Jaya  and  Padmini.   Yadugiramma  was  married   to Kalbagal  Garudachar  and  by him she had  a  son  Narasimha lyengar,   respondent  5,  and  daughter  Lilly.    Kalbagal Garudachar had a son S. G. Kalbagal, (hereinafter  described as  Junior Kalbagal) from his first wife.  Jaya was  married to  Kalbagal Junior.  The claim made by the appellant  under the will is resisted by respondent 1. 429 Respondents 2 to 5 have not appeared in the proceedings. According to the case set out by the appellant in his plaint Annaji lyengar bad made a gift of properties, items 1 and 2, in  favour jointly of Lakshmamma and Sadagopalachar under  a registered  deed of gift on February 16, 1902 (Ex.  D).   It was also alleged that the said Annaji lyengar had executed a will  On  August 31, 1901, (Ex.  B2(a)) under which  he  had bequeathed in favour of Lakshmamma and Sadagopalachar  hypo- thecation bonds to the extent of Rs. 10,320 as gift with the express stipulation that the survivor of the legatees should take  the  whole  of  the  bequest  by  survivorship.    The appellant  alleged  that Sadagopalachar was a  man  of  very moderate  means  and  had  given up his  petty  job  in  the registration  department in order to manage  the  properties received  by him and his wife from Annaji  lyengar.   During the course of the management Sadagopalachar used the cash of Rs.  10,320  received by bequest under the  will  of  Annaji lyengar to buy some immoveable properties including items  3 and   4.   Since  Sadagopalachar   pre-deceased   his   wife Lakshmamma, all his rights in the properties acquired  under the  gift  deed  as well  as  those  subsequently  purchased devolved  on Lakshmamma alone by survivorship.  That is  how she  became  the  absolute owner  of  the  said  properties. Alternatively  it was alleged by the appellant that even  if survivorship  did not apply and so her son Narayana  lyengar acquired  interest  to  half the  share  in  the  properties

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covered  by the gift deed, he had during his  lifetime  sold away  considerable properties of his father and mother  much above  the  value of his half share and in  consequence  the remaining properties which represent Lakshmamma’s half share became her absolute properties.  On this alternative  ground the  absolute  title of Lakshmamma with regard  to  all  the properties  in suit was set up.  The appellant thus  claimed that Lakshmamma was entitled to make a will and asked -.or a declaration  in that behalf and consequential reliefs so  as to  give effect to the terms and dispositions of  the  will. According to the appellant the will propounded by him was 430 the last testament of Lakshmamma and it had been a  executed by her voluntarily and of her own free will while she was in a sound and disposing state of mind. Respondent I disputed the appellants claim.  She denied that Annaji  lyengar had made a will on August 31, 1901, or  that Lakshmamma and Sadagopalachar had received the moveables  of the value of    Rs. 10,320 under it.  According to her,  the gift  deed  (Ex.   D)  did not  provide  for  devolution  of interest  by survivorship; she pleaded that  Lakshmamma  had transferred all her interests in the properties comprised in the  gift deed in favour of her husband  Sadagopalachar  who then  became their sole owner.  Respondent 1 did  not  admit that the properties subsequently purchased by Sadagopalachar including  items  3  to 5 were  purchased  with  any  monies bequeathed to him and his wife by Annaji lyengar;  according to  her, Sadagopalachar had made these purchases  with  his, own funds.  Respondent 1’s case was that, after the death of his  father  Sadagopalachar, her  husband  Narayana  lyengar became  the  absolute  owner of all the  properties  and  so Lakshmamma  was  not  competent in law to  make  a  will  in respect  of any of them.  She further alleged that the  will set up by the appellant was not genuine or valid and that at the  material  time  Lakshmamma  was  not  in  a  sound  and disposing  state of mind.  She contended that the  will  had been brought into existence through the machinations of  the appellant  and she disputed the appellant’s right  to  bring the present suit. On  these pleadings the learned trial judge  framed  fifteen issues.   He found that the will executed by Annaji  lyengar on August 31, 1901, was genuine and valid; and that the rule of survivorship was applicable as between the legatees inter se  in respect of the properties conveyed by the said  will. It was, however, held that the rule of survivorship did  Dot apply  to  the  properties  gifted  to  Sadagopalachar   and Lakshmamma  under Annaji’s deed of gift (Ex.  D)  which  was held  to be genuine and valid.  In regard to the  properties subsequently  purchased by Sadagopalachar the learned  judge said that " in fairness to the parties he would 431 like  to hold that various survey numbers in items 3  and  4 had been purchased by Sadagopalachar out of the joint income from the properties bequeathed to him and his wife by Annaji as also from the properties and through income which he  got at  a partition between himself and his  coparCeners  ".(Ex. F).   The  purchases made by Narayana Iyengar were  held  to have  been made out of the income of the properties of,  his father and of his mother.  The learned judge-’ rejected  the plaintiffs  case that Narayana lyengar had disposed  of  his properties  equivalent to his right under the gift  deed  of Annaji  (Ex.   D)  and held that he was  the  owner  of  the properties which had. vested in his father.  In the  result, according to the learned judge, Lakshmamma had a half  share in  all the properties in suit and so she was  competent  to

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make  the  will in respect of the said share.   The  learned judge  then considered the question as to the  execution  of the will set up by the appellant and came to the  conclusion that  the will (Ex.  A) was genuine and valid to the  extent of the share belonging to the testatrix.  The learned  judge also found that the suit was maintainable, was not barred by time  and  had been properly filed.  As a  result  of  these findings the learned judge declared that Lakshmamma was  the full owner of half the share in the scheduled properties and that respondent I under the will had only a life interest in respect  of the said half share in items 1 and 2. As a  con- sequence  of  this  declaration the  decree  passed  by  the learned judge directed respondent I to put the appellant  in possession  of Lakshmamma’s half share in items 3, 4 and  5; it also ordered respondent 1 to pay. to the appellant a  sum of Rs. 1,050 out of the past mesne profits recovered by her. An enquiry into future mesne profits was also directed under 0.  XX, r. 12.  In view of the fact that the  appellant  had succeeded only in regard to half the properties in suit  the decree askEd the parties to bear their own costs. Against this decree respondent I preferred an appeal in  the High  Court  of  Mysore;  and  the  appellant  filed   cross objections.  The High Court held that the appellant had  not established that when Lakshmamma was 432 alleged  to  have executed the will she was in a  sound  and disposing state of mind or that it was her will in the sense that it represented her  intentions.  According to the  High Court,  in  the  light  of  this  finding  "  it  might   be unnecessary to consider the other issues in the case".  Even so  the High Court proceeded to indicate its conclusions  on two  of  such  issues.   It held   that  the  appellant  had entirely failed to prove that the money for the purchase  of items 3, 4 and 5 came out of any bequest under Annaji’s will (Ex.   B2(a)) or the incomes from the properties covered  by the  gift  deed (Ex.  D) and so in  its  opinion  Lakshmamma could  not claim any share in the said properties.   On  the other hand, the High Court indicated that it was inclined to accept  the plea raised by respondent 1 that Lakshmamma  had transferred all her interest in the properties comprised  in the   said   deed  of  gift  in  favour   of   her   husband Sadagopalachar; and since in its opinion " Lakshmamms at  no time  appears to have claimed that she had any  interest  in those  properties,  there  was  considerable  force  in  the argument  urged  by respondent 1 that LakShmamma  must  have relinquished her interest in the said properties and  waived her  rights  in  favour of -her husband ".  The  High  Court thought   that  the  learned  trial  judge  had  not   fully considered all the material bearing on this point and so was in error in holding that at the relevant date Lakshmamma had a  subsisting  interest in half the share even in  the  suit properties,  items  1  and  2.  Having  thus  indicated  its decision on the two issues the High Court has observed  that even if it had found in favour of the appellant on these two points it would not have been of any help to him because his case must inevitably fail when it is held that the will  set up  by him was not proved to be the last will and  testament of  Lakshmamma.   In  the result  the  appeal  preferred  by respondent I was allowed, the cross-objections filed by  the appellant were rejected and his suit was dismissed.  In  the circumstances  of the case the High Court made no orders  as to costs. The  appellant then applied for and obtained  a  certificate from the High Court that the decision under 433

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appeal is one of reversal and it involves a claim respecting properties  of  the value of not less than Rs.  20,000.   In pursuance  of this certificate the High Court  ordered  that the  appeal  to this Court should be admitted; and  so  this appeal has come to this Court. Since  the  main  contention  raised  by  the  appellant  is directed against the finding of the High Court that the will in question is not proved to be the last will and, testament of  Lakshmamma, it would be necessary to refer to the  broad features,  and  dispositions, of the will and  the  evidence adduced  by  the appellant to prove its execution.   At  the material  time  Lakshmamma was about 64 years of  age.   She usually  resided at Hampapur; but about a month  before  the executing  of the will she had gone to Mandya to attend  the marriage  in  the  house  of  Junior  Kalbagal.   After  the marriage  was  over  she would  normally  have  returned  to Hampapur  but she fell ill and had to extend her  stay  with Junior Kalbagal.  The appellant’s case is that she had  told him  that  she wanted to execute a will and  had  given  him instructions in that behalf.  This talk had taken place  be- tween  her  and  the  appellant  about  a  year  before  the execution of the will.  The appellant, however, did not find time  to get the will written.  When Lakshmamma fell ill  at Mandya  the appellant had gone to visit her and she  pressed the appellant to prepare the draft of her will in accordance with her instructions.  So the appellant prepared a draft at Mysore  a day prior to the execution of the will.   He  then went to Mandya by. the morning train on August 22, 1945, and the  will  was  got  written about  11  or  11-30  a.m.  The appellant  had the draft in his hand from which he  dictated to  the  scribe  Chokkanna (P.  W. 3) who  wrote  the  will. After  the  will  was  written the scribe  took  it  to  the adjoining room where Lakshmamma was lying in bed.  The  will was  then  read  out to her and was signed by  her  in  five places (Exs.  A-1 to A-5).  Subsequently it was attested  by two  witnesses  Krishnamurthy Rao (P. W.  1)  and  Narasimha Iyengar (P.  W. 2).  Some time     later  during the  course of the day the Sub-Registrar  came  to the house  of  Junior Kalbagal and in his 55 434 presence the will (Ex.  A) was duly registered.  On the same day  at about the same time Lakshmamma executed a  power  of attorney  in  favour  of the appellant (Ex.   EE)  and  this document  was  also  duly  attested  and  registered.    The appellant has examined himself (P. W. 7), the two  attesting witnesses (P.  W. 1 and P.W.  2), the scribe (P.  W. 3)  and Junior  Kalbagal  (P. W.4) in support of his case  that  the will was duly and validly executed by Lakshmamma. The  will  is  a  fairly  long  document  and  its   English translation  spreads over eight printed pages.   Though  the dispositions  in the will have occupied a small  portion  of the  document it contains elaborate arguments in support  of the averment of the testatrix that she was entitled to  make a  will  in respect of all the properties mentioned  in  the will.  The will begins with the recital about the illness of the  testatrix and says " as I have felt in my mind that  it is necessary to mention here certain matters clearly so that there  may not be any kind of obstacles and  obstruction  at the  instance of any in respect of my purposes  coming  into effect  after my death I have got them written  in  detail." Then,  the will refers to the gift deed executed  by  Annaji jointly   in  favour  of  the  testatrix  and  her   husband Sadagopalachar  as  well  as to Annaji’s  will  under  which hypothecation  bonds  of  the  value  of  Rs.  10,000   were bequeathed  to  both of them.  The will then refers  to  the

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fact that Sadagopalachar was possessed of only a house and a carriage  shed and owned no other ancestral property.   Even the  said  house was of " very ancient times and  was  in  a dilapidated    condition   ".   According   to   the    will Sadagopalachar held a small government job which he resigned in order to live in Hampapur and to look after the  property obtained  by gift from Annaji.  " It was my opinion ",  says the  will, " that he was probably looking after my share  of the  property in addition to his own and was  improving  the same.  It is but natural to think in this manner mutually in respect  of husband and wife ". Then the will refers to  the subsequent  purchase  of certain lands and  avers  that  the amounts received by the couple from Annaji were utilised for the said 435 purchase.   The  will then refers to the  death  of  Sadago- palachar  in  1908  and  describes  the  management  of  the properties  during the lifetime of Narayana lyengar the  son of the testatrix.  It says that during Narayanan’s  minority the  testatrix sold some properties at the advice  and  with the help of her Brother-in-law Srinivasa lyengar for debts " without considering whether it was my share or my  husband’s share  "; she. also sold gold and diamond ornaments to  meet the  urgent needs of the family.  After Narayanan  became  a major  he began to manage the property in constitution  with Srinivasa  lyengar.  Narayanan wanted to build a  house  for residence  in Mysore and so he sold some wet lands  situated at Sarvamanya Gaudhanahalli village.  Narayanan had no issue and  so he spent generously at the time of the  marriage  of the  three  daughters of his  younger  sister  Thirumalamma. Besides he got ornaments prepared moderately for all of them and  purchased  and gave them as pin money  some  wet  lands situated  at Arjunahalli village.  Narayanan  purchased  and gave  some wet lands at the same village to the son  of  his second  younger  sister Kalbagal Narasimha  Iyengar  and  to Singamma  and Lalithamma.  Then the will refers  to  certain purchases  made by Narayanan and adds that the  purchase  of the said lands nominally stands in his name though the right to  the  property vested in the testatrix.   The  will  then states  that  Narayanan had no issue and so he  treated  his younger  sister’s  children as his own,  attended  to  their education,  marriage  and other  auspicious  functions  with great  zeal.   Having  disposed of his  properties  for  the benefit of the said children Narayanan considered that since he  was  the  only son of the testatrix  her  share  of  the property  was sufficient for the maintenance of himself  and his  wife and so he had no worry on that account.  In  other words, the will alleges that as a result of the  alienations made  by  Narayanan  he  ceased to have  any  share  in  the properties  that  remained  and  in  consequence  the   said properties belonged exclusively and solely to the testatrix. Then  the will refers to the insurance amount of  Rs.  4,000 which was paid to respondent 1 on Narayanan’s death; and 436 in  regard to Narayanan’s illness which ultimately  resulted in  his death the will adds that the testatrix  herself  had provided  separate  money  for  his  medicinal  and   family expenses  and that she had given Narayanan Rs.  3,000  which had  been deposited with her Brother-in-law and the  Reserve Bank  share of Rs. 500 to enable him to purchase a house  at Mysore.   The ,.will then refers to respondent in  terms  of affection and states that the testatrix was making a bequest for  life of items I and 2 in her favour in order  that  she may lead her life without any difficulty. ,Except me ", says the  will, " no one has any right whatever to the  scheduled

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properties.   They  should go only to those for whom  it  is intended  here  according to my desire after  my  death  but there is no reason whatsoever for their going to my  agnates or  any others.  I am at full liberty to  make  dispositions hereby according to my desire ". After making these elaborate averments the will proceeds  to make  dispositions of items I to 5. Items I and 2 are  given to  respondent for life.  " She shall have no right such  as hypothecation,  sale,  gift,  exchange, etc.,  of  the  said properties  nor  has  she  any  right  whatever  to   create liability in any way in favour of others ". After her  death respondents 2 to 4 are given item I and item 2 is bequeathed to respondent 5. Respondent 5 is described as an heir by the testatrix after her death and has been authorised to perform all  her ceremonies.  Item 3 is bequeathed to  respondent  5 and item 4 to respondents 2, 3 and 4. Out of the 15 acres of land included in item 4, the bequest in regard to 9 acres is burdened  with  a charge in favour of certain  legacies  and charities  mentioned  in the will.  The  recipients  of  the legacies  who are the relatives of the testatrix are  named, and the charities are also specifically mentioned.  Rs.  500 each have to be paid to her eldest daughter’s third daughter Padminiamma, to her eldest daughter’s son Thirumalachar  and to  Sudhakalyani,  the  daughter of  her  eldest  daughter’s second  daughter Jaya and to Nagendra, son of Neelamma,  the eldest daughter of her eldest daughter.  Besides, Rs.  1,000 had to be used for 437 conducting service in the Sannadi of Lakshminarayanaswamy at Hampapur  on the respective dates of death of  her  husband, her son and herself.  A sum of Rs. 500 has to be endowed for the  Nandadipa  service  in the name  of  Narayanan  in  the Sannadi  of  Thirupati Venkataramanaswami, and Rs.  500  for similar service in the name of Sadagopalachar in the Sannadi of  Channakeshavaswami,  Belur, the place of the  family  in Hassan District.  An amount of Rs. 1,000 has to be  utilised for scholarship to poor students.  In all Rs. 5,000 have  to be spent for these legacies and charities.  The will directs that  if  respondents  2 to 4 fail to  make  these  payments within  three  years after the death of  the  testatrix  the appellant  who  is  appointed the executor  under  the  will should,  after the expiry of the said three years, sell  for reasonable price the lands charged in that behalf and should pay  the full amount realised by such sale to carry out  the aforesaid  charitable  works  and  to  give  effect  to  the legacies  mentioned in the will.  The will then  avers  that after her death the document would remain with the appellant and  it adds that the testatrix has not executed  any  prior will but that in case any such will has been executed by her the  same  stood cancelled by the execution of  the  present will.  The will then repeats the averment about the title of the  testatrix  and states that when  Narayana  Iyengar  was alive  he had sold about 17 acres of land situate at  Adagur and other places for purchasing lands at Arjunahalli village for  his  sisters’ children and so the  testatrix  had  full liberty  to make a disposition in respect of  the  scheduled properties  which  were her own.  The will  also  adds  that though the said properties stand in the name of her son  and rent  notes  in respect of them are  similarly  executed  in favour of her son that does not affect her title to the said properties  in any way.  These are the broad  features,  and dispositions, of the will in question. We  would  now  indicate briefly the  evidence  led  by  the appellant  on the question about the valid execution of  the will.   We  have already mentioned that  the  two  attesting

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witnesses,  the scribe and the appellant himself have  given evidence in support of the will. 438 Mr.  Krishnamurthy Rao (P.  W. 1) was a medical  officer  to the  Mysore  Sugar Company, Mandya, and he knew  the  Junior Kulbagal  who  was working as a Cane Superintendent  in  the said factory.  This witness was called by Kalbagal to attest the will and so he went to his house and saw that Lakshmamma was lying in her bed since she had an attack of paralysis on her left  side.  According to the witness her mind was clear and  he attested the will after ascertaining from  her  that the  document  had received her approval.  The  witness  was cross-examined  in  regard  to his  statement  that  he  had treated  Lakshmamma  and it was brought out in  his  answers that though she may have been under his treatment for  about a  week  he could not say if her name found a place  in  the hospital  register.  He, however, added that  even  patients who  are treated in their houses would be mentioned  in  the hospital  ’register if they come and take medicine from  the hospital.   The  witness  admitted that  the  will  was  not written  in  his presence and that it  was  already  written before  he  went to attest it.  When the witness  was  asked about the details of his signature on the will he gave  ans- wers   which  showed  that  he  did  not  have   any   clear recollection  as  to what happened on that date.   First  he stated that he had put one signature but ultimately admitted that  he had signed twice, once while he attested  the  will and  also  when  the  Sub-Registrar  registered  it  in  his presence.   It  fact some of his answers  suggest  that  the witness  did not even remember that he was present when  the Sub-Registrar  arrived  and registered  the  document.   The witness stated that the will was read in his presence but he did not know if the whole was read or only a few portions of it. The  next attesting witness is Narasimha lyengar (P. W.  2). He   was  employed  in  Mandya  Sugar  Company   Distillery. According  to him the will was written in his  presence  and Lakshmamma put her signature on it also in his presence.  In cross-examination,  however, it appeared that his  statement that  he  was present when the will was written may  not  be accurate.   He  did  not know whether there  was  any  draft already prepared and he saw none. 439 According  to him, after the will was written the  appellant read out the will to Lakshmamma   but      according  to the appellant  the will was read out by the scribe.   He  stated that after the will was attested both he and P.   W. 1  left the  place but it is clear that P. W. 1 was present  at  the time of registration.  The witness even did not know whether Lakshmamma had any attack of paralysis.  The evidence of the scribe  (P.  W. 3) and of the appellant (P.  W.  7)  clearly negatived Mr. Iyengar’s statement that he was present at the time the will was written.  The evidence of both the  scribe and  the appellant unmistakably shows that Mr.  lyengar  was not present when the will was written. Chokkanna  (P.  W. 3) the scribe is a relative of  Kulbagal. The  mother of Chokkanna and Kulbagal’s mother are  sisters. He has written the will.  According to him Lakshmamma stated that  she wanted to execute a will and that she would  agree to what the appellant would get written.  The witness stated that the will was written according to the dictation of  the appellant in the presence of Lakshmamma.  The appellant  had a draft with him.  Except the appellant, Lakshmamma and  the scribe none else was present when the will was written.  The attesting  witnesses came after the will was  written.   The

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witness  then read the will to Lakshmamma who  consented  to the recitals and signed it.  It may be pointed out that  the account given by the scribe in respect of the writing of the will  is  somewhat different from the account given  by  the appellant.   The  -appellant has stated that  the  will  was written  in  one  room  and  Lakshmamma  was  lying  in  the adjoining  room and it was after the will was  written  that the scribe went into the adjoining room and read the will to her  so that the statement of the scribe that the  will  was written  in the presence of Lakshmamma is not  supported  by the  appellant.  In fact the appellant’s statement  is  cor- roborated by the evidence of Junior Kulbagal in this matter. Mr.  Kalbagal  (P.W.  4) does not seem  to  know  about  the intention of the testatrix to execute the will.  It was when plaintiff asked him to get some attesting 440 witnesses  that he came to know that a will was going to  be executed.  He then went and brought P. W. 1 and P. W. 2  for attestation.  This witness admitted that Lakshmamma was  ill and was unable to get up and leave her bed.  He heard  about her  intention  to  execute the will about  9  a.m.  in  the morning.  He was not present when the will was written.   He was,  how  ever, present when the will was read out  by  the scribe  to Lakshmamma.  His father Kalbagal  Garudachar  and his  wife Jaya were also present.  The witness  then  stated that  the appellant brought the Sub-Registrar at about  5-30 p. m. and the Sub-Registrar registered the will.  It  would, however,  appear from the application (Ex.  VI) made to  the Sub-Registrar  inviting him to come to Kalbagal’s  house  to register  the  will that it was not the  appellant  but  the witness himself who had brought the Sub-Registrar. The  last  witness in support of the will is  the  appellant himself,  (P.W.  7).   He has  spoken  to  the  instructions received  by him from Lakshmamma a year before the  date  of the execution of the will and he has stated that he prepared a  draft  at Mysore a day before the will was  executed  and that  the will was written by the scribe as he dictated  the contents from the said draft.  He had told Lakshmamma  about what the draft contained but he admitted that the draft  was not  read out to her.  The witness has then referred to  the fact that the will was read out by the scribe to  Lakshmamma and she consented to it, whereupon it was signed by her  and subsequently attested by the two attesting witnesses.   Then the  witness refers to the registration of the  document  at about 5-30 p.m. On the morning of the day when the will  was executed  the witness was told by Lakshmamma that she  would execute a power of attorney though the witness had not asked for  it.  A power of attorney was accordingly  prepared  and duly executed and registered.  That in brief is the evidence on which the appellant relies. It would be convenient at this stage to refer briefly to the reasons  given  by  the courts below  in  support  of  their respective  findings.  The learned trial judge put the  onus of proving the will on the appellant but 441 he observed that " the proof that is necessary to  establish a  will  is not an absolute or a conclusive  one.   What  is required is only such proof as would satisfy a prudent man:- The  learned judge then considered the evidence of  the  two attesting witnesses and the scribe and observed that " there can  absolutely be no doubt that P.W. 3 wrote Ex.  A at  the time when it is said to have been( written ". He was of  the opinion  that the evidence of the scribe fully  corroborates the evidence of P. W. I and P. W. 2. The learned judge  then mentioned the fact that P. W. 4 who supported the  appellant

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is no other than the husband of Lakshmamma’s  granddaughter. The evidence of the appellant himself was considered by  the learned  judge  and his conclusion was that " it had  to  be taken  that Ex.  A is a will executed by Lakshmamma and  the signatures,  Exs.  A - I to A-5 are those of  Lakshmamma  ". The argument urged by respondent I that Lakshmamma could not have  understood the contents of Ex.  A was rejected by  the learned judge and he observed that " when it is proved -that Exs.   A-1 to A-5 are signatures of Lakshmamma and that  she executed Ex.  A, it is to be presumed that the testatrix had the knowledge of the contents of the will ". In the end  the learned  judge thus recorded his finding: " In view  of  the evidence  and the presumption referred to above I  think  we deed  not  have any hesitation in  holding  that  Lakshmamma executed Ex.  A having fully understood the nature of Ex.  A and the recitals made therein ". The  High  Court, on the other hand, has  taken  a  contrary view.   The High Court thought that the evidence adduced  by the  appellant  to prove the execution of the will  was  not satisfactory.   It then examined the said evidence  in  some detail,  criticised the discrepancies appearing in the  said evidence,  considered the probabilities and concluded  that, on  the  whole,  the said evidence  would  not  justify  the finding  that  the  will  had  been  duly  executed  by  the testatrix.  The High Court also thought that the appellant’s version about the instructions given by Lakshmamma to him 56 442 in  the  matter  of the execution of  the  will  was  highly improbable;  and,  according to the High  Court,  the  whole evidence  of  the appellant appeared to  be  unsatisfactory. The  High  Court then considered the question  of  onus  and observed  that  since the appellant’s sons  had  received  a substantial benefit under the will and since he had taken  a leading part in its execution, the onus was heavy on him  to remove  the  suspicions  attending  the  execution  of   the document  and  to  establish  that  Lakshmamma  had   really understood  its contents, had approved of them and  had  put her  signatures on it when she was in a sound and  disposing state  of mind.  It that the High Court also felt  that  the dispositions made by the will were unnatural and improbable; in particular it took the view that since the appellant  had come  into  the  family of Annaji by adoption  it  was  very unlikely   that  his  sons  should  have  received  such   a substantial benefit under the will.  In fact the judgment of the  High Court appears to indicate that The High Court  was inclined  to hold that the testatrix may not have been in  a sound and disposing state of mind at the material time.   It is  on these findingS that the High Court reached its  final conclusion  that the appellant had failed to prove  the  due and valid execution of the will. What  is the true legal position in the matter of  proof  of wills ? It is well-known that the proof of wills presents  a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject.  The party propounding a will or otherwise making a claim under a  will is no doubt seeking to prove a document and, in deciding how it  is  to  be  proved, we  must  inevitably  refer  to  the statutory  provisions which govern the proof  of  documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose.  Under s. 67, if a document is alleged to be signed by  any  person, the signature of the said  person  must  be proved  to  be in his handwriting, and for  proving  such  a handwriting  under ss. 45 and 47 of the Act the opinions  of experts  and of persons acquainted with the  handwriting  of

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the  person concerned are made relevant.  Section  68  deals with 443 the  proof of the execution of the document required by  law to  be attested; and it provides that such a document  shall not be used as evidence until one attesting witness at least has  been called for the purpose of proving  its  execution. These  provisions prescribe the requirements and the  nature of proof which must be satisfied by the party who relies  on a  document in a court of law.  Similarly, ss. 59 and 63  of the  Indian  Succession Act are also relevant.   Section  59 provides that every person of sound mind, not being a minor, may   dispose  of  his  property  by  will  and  the   three illustrations to this section indicate what is meant by  the expression  "  a  person of sound mind  "  in  the  context. Section  63 requires that the testator shall sign  or  affix his  mark  to the will or it shall be signed by  some  other person  in  his presence and by his direction and  that  the signature or mark shall be so made that it shall appear that it  was intended thereby to give effect to the writing as  a will.   This  section also requires that the will  shall  be attested  by two or more witnesses as prescribed.  Thus  the question as to whether the will set up by the propounder  is proved to be the last will of the testator has to be decided in  the light of these provisions.  Has the testator  signed the  will ? Did he understand the nature and effect  of  the dispositions  in the will ? Did he put his signature to  the will  knowing what it contained ? Stated broadly it  is  the decision  of these questions which determines the nature  of the finding on the question of the proof of wills.  It would prima  facie be true to say that the will has to  be  proved like   any   other  document  except  as  to   the   special requirements  of  attestation  prescribed by s.  63  of  the Indian  Succession  Act.  As in the case of proof  of  other documents so in the case of proof of wills it would be  idle to expect proof with mathematical certainty.  The test to be applied would be the usual test of the satisfaction of  the, prudent mind in such matters. However, there is one important feature which  distinguishes wills from other documents.  Unlike other documents the will speaks  from the death of the testator, and so, when  it  is propounded or produced 444 before  a court, the testator who has already  departed  the world  cannot say whether it is his will or not ;  and  this aspect  naturally introduces an element of solemnity in  the decision  of  the  question  as  to  whether  the   document -propounded  is proved to be the last will and testament  of the  departed testator.  Even so, in dealing with the  proof of wills the court will start on the same enquiry as in  the case  of  the proof of documents.  The propounder  would  be called  upon to show by satisfactory evidence that the  will was  signed  by  the  testator, that  the  testator  at  the relevant  time was in a sound and disposing state  of  mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free  will. Ordinarily when the evidence adduced in support of the  will is  disinterested, satisfactory and sufficient to prove  the sound  and  disposing state of the testator’s mind  and  his signature  as required by law, courts would be justified  in making  a  finding in favour of the  propounder.   In  other words,  the  onus  on  the propounder can  be  taken  to  be discharged on proof of the essential facts just indicated. There  may, however, be cases in which the execution of  the will  may  be surrounded by suspicious  circumstances.   The

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alleged  signature  of the testator may be  very  shaky  and doubtful  and evidence in support of the  propounder’s  case that  the  signature, in question is the  signature  of  the testator may not remove the doubt created by the  appearance of  the signature; the condition of the testator’s mind  may appear  to  be  very feeble and  debilitated;  and  evidence adduced may not succeed in removing the legitimate doubt  as to  the  mental capacity of the testator;  the  dispositions made  in the will may appear to be unnatural, improbable  or unfair in the light of relevant circumstances; or, the  will may otherwise indicate that the said dispositions may not be the  result of the testator’s free will and mind.   In  such cases  the court would naturally expect that all  legitimate suspicions should be completely removed before the  document is accepted as the last will of the testator.  The  presence of such suspicious circumstances naturally tends to 445 make  the  initial  onus  very  heavy;  and,  unless  it  is satisfactorily  discharged,  courts would  be  reluctant  to treat the document as the last will of the testator.  It  is true  that,  if a caveat is filed alleging the  exercise  of undue  influence,  fraud  or  coercion  in  respect  of  the execution of the will propounded, such pleas may have to  be proved  by  the  caveators; but,  even  without  such  pleas circumstances  may raise a doubt as to whether the  testator was  acting of his own free will in executing the will,  and in  such  circumstances, it would be a part of  the  initial onus to remove any such legitimate doubts in the matter. Apart  from  the suspicious circumstances to which  we  have just  referred, in some cases the wills propounded  disclose another infirmity.  PrOpounders themselves take a  prominent part  in  the execution of the wills which  confer  on  them substantial  benefits.  If it is shown that  the  propounder has taken a prominent part in the execution of the will  and has  received substantial benefit under it, that  itself  is generally treated as a suspicious circumstance attending the execution  of  the will and the propounder  is  required  to remove   the  said  suspicion  by  clear  and   satisfactory evidence.  It is in connection with wills that present  such suspicious  circumstances that decisions of  English  courts often  mention  the  test of the  satisfaction  of  judicial conscience.   It  may  be that  the  reference  to  judicial conscience  in  this connection is a heritage  from  similar observations  made by ecclesiastical courts in England  when they exercised jurisdiction with reference to wills; but any objection  to  the  use of the  word  ’conscience’  in  this context  would,  in  our opinion, be  purely  technical  and academic, if not pedantic.  The test merely emphasizes that, in  determining  the question as to  whether  an  instrument produced before the court is the last will of the  testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the  testator who is no longer alive. It  is obvious that for deciding material questions of  fact which  arise  in applications for probate or in  actions  on wills, no hard and fast or inflexible rules can 446 be laid down for the appreciation of the evidence.  It  may, however,  be stated generally that a propounder of the  will has  to  prove the due and valid execution of the  will  and that  if there are any suspicious circumstances  surrounding the  execution  of the will the propounder must  remove  the said  suspicions  from the mind of the court by  cogent  and satisfactory  evidence.  It is hardly necessary to add  that the result of the application of these two general and broad

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principles   would   always  depend  upon  the   facts   and circumstances of each case and on the nature and quality  of the evidence adduced by the parties.  It is quite true that, as  observed  by Lord Du Parcq in Harmes v.  Hinkson  (1)  " where  a will is charged with suspicion, the rules enjoin  a reasonable  scepticism,  not  an  obdurate  persistence   in disbelief.   They  do  not demand from the  judge,  even  in circumstances   of   grave   suspicion,   a   resolute   and impenetrable incredulity.  He is never required to close his mind to the truth ". It would sound platitudinous to say so, but  it is nevertheless true that in discovering truth  even in  such cases the judicial mind must always be open  though vigilant, cautious and circumspect. It  is in the light of these general considerations that  we must decide whether the appellant is justified in contending that  the  finding  of the High Court  against  him  on  the question of the valid execution of the will is justified  or not.  It may be conceded in favour of the appellant that his allegation  that  Lakshmamma has put her signatures  on  the will at five places is proved ; that no doubt is a point  in his favour.  It may also be taken as proved that  respondent I has failed to prove that Lakshmamma was unconscious at the time when the will is alleged to have been executed.  It  is true she A, as an old woman of 64 years and had been  ailing for  some  time before the will was executed.  She  was  not able to get up and leave the bed.  In fact she could sit  up in bed with some difficulty and was so weak that she had  to pass  stools in bed.  However, the appellant is entitled  to argue that, on the evidence, the sound and disposing (1)  (1946) 50 C.W.N. 895. 447 state of mind of Lakshmamma is proved.  Mr Iyengar, for  the appellant,  has strongly urged before us that,  since  these facts  are  established, the court must  presume  the  valid execution  of the will and in support of his  contention  he has invited our attention to the relevant statements on  the point in the text books dealing with the subject.  Jarman on " Wills " (1) says that " the general rule is that the  onus probandi  lies  in every case upon the party  propounding  a will  and he must satisfy the conscience of the  court  that the instrument so propounded is the last will of a free  and capable testator’." He adds that, "if a will is rational  on the  face  of  it, and appears to be duly  executed,  it  is presumed, in the absence of evidence to the contrary, to  be valid."    Similarly,   Williams   on   "   Executors    and Administrators   "  (2)  has  observed  that,  "   generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of  the will   having  been  read  over  to  the  testator   or   of instructions  having  been given is not necessary."  On  the other  hand,  Mr. Viswanatha Sastri, for respondent  No.  1, contends  that  the statements on which  the  appellant  has relied refer to wills which are free from any suspicions and they  cannot be invoked where the execution of the  will  is surrounded by suspicious circumstances.  In this connection, it  may  be pertinent to point out that, in  the  same  text books,   we  find  another  rule  specifically   mentioned." Although  the  rule  of  Roman Law  ",  it  is  observed  in Williams, " that " Qui se scripsit haeredem " could take  no benefit under a will does not prevail in the law of England, yet,  where  the  person who  prepares  the  instrument,  or conducts  its  execution, is himself benefited by  its  dis- positions,  that is a circumstance which ought generally  to excite  the  suspicion of the court, and calls on it  to  be vigilant and zealous in examining the evidence in support of

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the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and (1)  Jarman on " Wills"--Vol. 1, 8th Ed., P. 50. (2)  Williams  on " Executors and  Administrators"--Vol.  1, 13th Ed., P. 92. 448 it  is judicially satisfied that the paper does express  the true will of the deceased " (1). It  would, therefore, be necessary at this stage  to  decide whether  an  execution of the will in the  present  case  is surrounded  by any suspicious circumstances.  Does the  will appear  to  be  on the whole an  improbable,  unnatural  and unfair  instrument as held by the High Court?  That  is  the first  question  which  falls to  be  considered.   We  have already  indicated  that the preamble to the  will  contains many argumentative recitals.  Indeed it would not be  unjust to  say that the preamble purports to meet  by  anticipation the  main objections which were likely to be raised  to  the competence  of  Lakshmamma to make a will in regard  to  the properties  covered  by it.  The preamble  in  great  detail makes  out  a  case  that the  properties  received  by  the testatrix  and  her  husband under the gift  deed  (Ex.   D) devolved upon her by survivorship after her husband’s death, a plea which has not been accepted even by the trial  court. It also seeks to prove that the subsequent purchases made by her  husband  were  in law the  joint  acquisitions  of  her husband  and herself, a point on which the two courts  below have  differed.  It sets out in detail the theory  that  the son of the testatrix has lost his right, title and  interest in  the properties which devolved on him after his  father’s death  because he had alienated more than his share  in  the said  properties during his lifetime; and it  even  suggests that during his illness and to help him to build a house  in Mysore  the  testatrix  had  advanced  him  money  from  her separate funds, pleas which have not been accepted by either court  below.   It seems to us that the elaborate  and  well considered recitals which have been deliberately  introduced in   the   preamble  cannot  possibly  be  the   result   of corresponding  instructions  given by the testatrix  to  the appellant  for  preparing  the draft of her  will.   In  the context  these recitals sound artificial and  unnatural  and some  of them at any rate are untrue.  The draftsman of  the will  has  tried to be overwise’ and that itself is  a  very serious infirmity in the appellant’s case that the (1)  Williams  on " Executors and Administrators  ",  Vol.1, 13th Ed., P. 93. 449 instrument  represents  the last will and testament  of  the testatrix.  Take for instance the statement in the will that the  testatrix had advanced Rs. 3,000 to her son  to  enable him to purchase a house at Mysore.  By itself this is not  a matter  of very great importance; but this detail  has  been introduced  in the will in order to make out a  strong  case that  all  the  properties mentioned in the  will  were  the separate  properties of the(, testatrix and so it  would  be relevant  to consider what the appellant himself has to  say about  this recital.  In regard to the Rs. 3,000  in  cross- examination  the  appellant  has  stated  that  Mr.  B.   G. Ramakrishna  lyengar had sent this amount to the husband  of respondent 1 in 1942 or so.  It was sent by cheque on Mysore Bank.  The appellant then added that the husband of  respon- dent  1  had deposited this amount with  B.  G.  Ramakrishna Iyengar’s  father-in-law  after selling  Goudanahalli  lands

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with  intent to purchase lands at Mysore; so that the  claim made in the will that the testatrix bad given this amount to her son out of her separate funds is inaccurate.  The manner in  which  the several recitals have been made in  the  will amounts   to  a  suspicious  circumstance  which   must   be satisfactorily explained by the appellant. The next circumstance which calls for an explanation is  the exclusion  of the grand-children of the testtatrix from  any substantial  legacies  under the will.  It is  true  that  a bequest of Rs. 500 each is given to them but that can hardly be  regarded  as fair or just to these  children.   It  was, however,  urged  by  Mr. lyengar  before  us  that  Narayana lyengar  had,  during  his  lifetime,  given  lands  to  his sister’s daughters.  He had also spent considerable  amounts on  the occasion of their marriages and had given them  each valuable  ornaments.  In this connection, he referred us  to certain documents exhibited under Ex.  I G’ and attempted to show that the lands given to his sisters’ daughters were  of the  value of Rs. 1,500 to Rs. 2,000 each.  Apart  from  the fact that the value of these lands is not clearly proved nor are the circumstances under which they came to be gifted  to the donees, we 57 450 do  not  think it would be possible to accept  the  argument that  even  with these gifts the testatrix  would  not  have thought  of making more substantial bequests to  her  grand- children.   It is not suggested -that the relations  between the testatrix and these grand-children were not cordial  and affectionate  and so it would be reasonable to  assume  that they  would have been the objects of her bounties in a  more liberal measure in ordinary circumstances. There  is  one more point which must be considered  in  this connection.   As we have already mentioned  the  appellant’s sons have received substantial bounties under the will.  Are these bequests probable and natural ? It must be  remembered that  the  appellant  came  into the  family  of  Annaji  by adoption  long after the testatrix was married.  The  record does  not show that the testatrix was on  such  affectionate terms  with the appellant that she would have  preferred  to make  a  bequest to his sons rather than to her  own  grand- children.   Indeed  the  appellant  admitted  that,  at  the relevant time, he was in straightened circumstances and  was indebted  to the extent of nearly, Rs. 30,000; and  it  does not   appear   that  when  he  was  faced   with   financial difficulties of this magnitude he asked for or obtained  any assistance  from  his  adoptive sister.   That  is  why  the bequests to the appellant’s sons also amount to a suspicious circumstance   which  must  be  clearly  explained  by   the appellant.   We cannot easily reject the argument urged  on. behalf  of respondent I that the bequests have been made  in the names of the appellant’s sons because, if they had  been made  in his own name, the properties bequeathed would  have been  attached  and  sold at the instance  of  his  numerous creditors.  We do not propose to measure precisely the value of  the properties bequeathed to the appellant’s  sons.   It would  be  enough to say that the said bequests  are  by  no means  insignificant  or unsubstantial.  Therefore,  we  are unable  to see how the appellant can successfully  challenge the  finding  of  the  High Court that  some  of  the  broad features of the will appear to be improbable and unfair; and if  that  be  so,  the appellant will  have  to  remove  the suspicions arising 451 from  these  features before he can persuade  the  court  to

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accept the instrument as the last will and testament of the testatrix. In this connection it is necessary to bear in mind that  the appellant  whose  sons have received the said  bequests  has admittedly taken a very prominent part in bringing about the execution of the will.  He has prepared the draft and it was at his dictation that the  scribe wrote the will.  Indeed on the important question as to when and how instructions  were given  by the testatrix and whether or not in preparing  the draft  those instructions have been faithfully carried  out, the  only  evidence  adduced  in the case  is  that  of  the appellant and no one else.  Thus, the very important, if not the decisive, part played by the appellant in the  execution of the will cannot at all be disputed in the present case. Mr. Iyengar, for the appellant, strenuously contended  that, in  deciding whether the suspicions attending the  execution of the will have been removed or not, it would be  necessary to  remember that the whole of the relevant evidence is  all one  way  and  there  is no  evidence  in  rebuttal  led  by respondent  1. His argument is that the evidence adduced  by the  appellant  is satisfactory and the  conclusion  of  the trial  court  which  was well-founded  need  not  have  been reversed  by the High Court.  In support of  this  argument, Mr.  lyengar referred us to several judicial  decisions  and suggested that we should consider the evidence in the  light of these decisions.  According to him, these decisions would afford   us   considerable  assistance   and   guidance   in appreciating the evidence in the present case.  That is  why we  would now briefly refer to some of the  decisions  cited before us. According  to the decisions in Fulton v. Andrew  (1)  "those who take a benefit under a will, and have been  instrumental in preparing or obtaining it, have thrown upon them the onus of  showing the righteousness of the transaction ". "  There is  however no unyielding rule of law (especially where  the ingredient of fraud enters into the case) that, when it  has been (1)  [1875) L.R. 7 H. L- 448. 452 proved  that a testator, competent in mind, has had  a  will read over to him, and has thereupon executed it, all further enquiry  is shut out ". In this case, the  Lord  Chancellor, Lord   Cairns,  has  cited  with  approval  the   well-known observations  of Baron Parke in the case of Barry v.  Butlin (1).   The  two rules of law set out by Baron Parke  are:  " first,  that the onus probandi  lies in every case upon  the party   propounding  a  will;  and  lie  must  satisfy   the conscience of the court that the instrument so propounded is the  last will of a free and capable testator"; "the  second is,  that, if a party writes or prepares a will under  which he  takes  a  benefit, that is  a  circumstance  that  ought generally  to  excite the suspicion of the court  and  calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to  pronounce  unless the suspicion is removed,  and  it  is judicially satisfied that the paper propounded does  express the  true will of the deceased ". It is hardly necessary  to add  that the statement of these two rules has now  attained the  status of a classic on the subject and it is  cited  by all  text books on wills.  The will propounded in this  case was  directed  to be tried at the Assizes by  the  Court  of Probate.  It was tried on six issues.  The first four issues referred to the sound and disposing state of the  testator’s mind and the fifth to his knowledge and approval of the con- tents of the will.  The sixth was whether the testator  knew

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and  approved  of  the residuary clause; and  by  this  last clause  the propounders of the will were made the  residuary legatees and were appointed executors.  Evidence was led  at the  trial and the judge asked the opinion of the jurors  on every one of the issues.  The jurors found in favour of  the propounders  on the first five issues and in favour  of  the opponents  oil the sixth.  It appears that no leave  to  set aside  the  verdict and enter judgment for  the  propounders notwithstanding the verdict on the sixth issue was reserved; but  when the case came before the Court of Probate  a  rule was  obtained to set aside the verdict generally and have  a new trial or to set aside the verdict on the (1)  [1838] 2 Moo.  P.C. 480,482. 453 sixth  issue for misdirection.  It was in dealing  with  the merits of the finding on the sixth issue that the true legal position  came to be considered by the House of Lords.   The result of the decision was that the rule obtained for a  new trial  was discharged, the order of the Court of Probate  of the  whole will was reversed and the matter was remitted  to the Court of Probate to do what was right with regard to the qualified pro. bate of the will. The  same  principle  was emphasized by  the  Privy  Council in:Vellasawmy  Servai v. Sivaraman Servai (1), where it  was held  that,  where  a  will  is  propounded  by  the   chief beneficiary under it, who has taken a leading part in giving instructions  for  its  preparation  and  in  procuring  its execution, probate should not be granted unless the evidence removes  suspicion  and  clearly proves  that  the  testator approved the will. In  Sarat Kumari Bibi v. Sakhi Chand (2), the Privy  Council made  it  clear  that " the  principle  which  requires  the propounder  to remove suspicions from the mind of the  Court is  not  confined only to cases where the  propounder  takes part in the execution of the will and receives benefit under it.   There may be other suspicious circumstances  attending on  the execution of the will and even in such cases  it  is the duty of the propounder to remove all clouds and. satisfy the  conscience of the court that the instrument  propounded is the last will of the testator." This view is supported by the  observations  made  by Lindley and Davey,  L.  JJ.,  in Tyrrell v. Painton (3).  " The rule in Barry v. Butlin  (4), Fulton v. Andrew (5) and Brown v. Fisher (6), said  Lindley, L.  J., " is not in my mind confined to the single  case  in which the will is prepared by or on the instructions of  the person  taking  large benefits under it but extends  to  all cases   in  which  circumstances  exist  which  excite   the suspicions of the court." In Rash Mohini Dasi v. Umesh Chunder Biswas (1)   (1929) L.R 57 I.A. 96. (3)   [1894] P. 151, 157, 159. (5)  (1875) L.R. 7 H. L. 448. (2)  (1928) L.R. 56 I.A. 62. (4)  [1838] 2 MOO.  P. C. 480, 482. (6    (1890) 63 L.T. 465. (7)   (1898) L.R. 25 I.A. 109. 454 it  appeared that though the will was fairly simple and  not very long the making of it was from first to last the  doing of  Khetter, the manager and trusted adviser of the  alleged testator.  No previous or independent intention of making  a will   was  shown  and  the,  evidence  that  the   testator understood the business in which his adviser engaged him was not  sufficient  to justify the-grant of probate.   In  this case the application for probate made by the widow of  Mohim

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Chunder  Biswas was opposed on the ground that the  testator was  not  in  a sound and disposing state of  mind  at  the, material  time and he could not have understood  the  nature and  effect of its contents.  The will had been admitted  to the  probate  by the District Judge but the High  Court  had reversed the said order.  In confirming the view of the High Court  the Privy Council made the observations to  which  we have just referred. The  case of Shama Charn Kundu v. Khettromoni Dasi  (1),  on the  other  hand, was the case of a will  the  execution  of which  was  held  to be not  surrounded  by  any  suspicious circumstances.   Shama  Charn, the propounder of  the  will, claimed to be the adopted son of the testator.  He and three others  were appointed executors of the will.  The  testator left no natural son but two daughters and his widow.  By his will  the  adopted son obtained  substantial  benefit.   The probate of the will with the exception of the last paragraph was  granted  to  Shama Charn by the trial  judge;  but,  on appeal the application for probate was dismissed by the High Court  on  the ground that the suspicions attending  on  the execution of the will had not been satisfactorily removed by Shama  Charn.   The matter was then taken before  the  Privy Council;  and their Lordships held that, since the  adoption of Shama Charn was proved, the fact that he took part in the execution  of the will and obtained benefit under it  cannot be  regarded as a suspicious circumstance so as  to  attract the rule laid down by Lindley, L. J., in Tyrrell v.  Painton (2).   In  Bai Gungabai v. Bhugwandas Valji.(3),  the  Privy Council  had  to  deal with a will  which  was  admitted  to probate by the first court, but on appeal (1) (1899) I.L.R. 27 Cal. 522.  (2) [1894] P. 151, 157, 159. (3) (1905) I.L.R. 29 Bom. 530. 455 the order was varied by excluding therefrom certain passages which referred to the deed-poll executed on the same day  by the  testator and to the remuneration of the  solicitor  who prepared the will and was appointed an executor and  trustee thereof.  The Privy Council held that " the onus was on  the solicitor  to  satisfy the court that the  passages  omitted expressed  the true will of the deceased and that the  court should be diligent and zealous in examining the evidence  in its support, but that on a consideration of the whole of the evidence  (as  to  which  no  rule  of  law  prescribed  the particular  kind required) and of the circumstances  of  the case the onus was discharged ". In dealing with the question as  to  whether  the testator was aware  that  the  passages excluded by the appeal court from the probate formed part of the  instrument,  the Privy Council  examined  the  evidence bearing  on the point and the probabilities.  In  conclusion their  Lordships differed from the view of the appeal  court that there had been a complete failure of the proof that the deed-poll  correctly  represented  the  intentions  of   the testator  or that he understood or approved of its  contents and so they thought that there were no grounds for excluding from the probate the passages in the will which referred  to that  deed.  They, however, observed that it would no  doubt have  been more prudent and business-like to  have  obtained the  services of some independent witnesses who  might  have been trusted to see that the testator fully understood  what he  was doing and to have secured independent evidence  that clause  26  in  particular  was  called  to  the  testator’s attention.  Even so, their Lordships expressly added that in coming  to the conclusion which they had done they must  not be  understood  as  throwing  the  slightest  doubt  on  the principles  laid  down  in Fulton v. Andrew  (1)  and  other

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similar cases referred to in the argument. In  Perera v. Perera (2) it was held that when the  testator is  of sound mind when he gives instructions for a will  but at  the  time of signature accepts the instrument  drawn  in pursuance thereof without being able (1) (1875) L.R. 7 H.L. 448.        (2) [1901] A.C. 354. 456 to  follow its provisions, he must be deemed to be of  sound mind when it is executed.  The will of Perera with which the court was concerned in this case was signed with a cross  by the  testator in the presence of five witnesses  present  at the  same time who duly subscribed the will in the  presence of  the  testator.   The Notary Public was  also  among  the persons  present  but  he  did  not  attest  the  will.   No objection  was taken in the court of first instance on  this ground, but, in the court of appeal, the said objection  was raised  and  it was held that the will was  invalid  on  the ground that though the Notary Public was present he had  not attested  the  instrument.  The case was then taken  to  the Supreme   Court  in  its  collective  capacity   on   review preparatory to an appeal to Her Majesty.  The Supreme  Court reversed  the  judgment under appeal and then  proceeded  to determine  the  case  on the merits.  The court  held  by  a majority  decision  that  the  testator  was  of  sound  and disposing  state  of  mind and restored  the  order  of  the primary  judge.  Against this decision there was an  appeal. In  this case, the evidence about the instructions given  by the testator was very clear; and there was not the slightest reason for disbelieving the statement of Gooneratne that  he had drawn the will faithfully in accordance with the details of  instructions given to him.  The will prepared  from  the said instructions seemed to be fair and just disposition  of the testator’s property.  There was no concealment about the preparation  of  the will.  The instructions were  given  on June 1 and it was in the evening of June 4 that the will was brought to the testator for execution.  It is on these facts that  it was held, following the observations of  Sir  James Hannen  in Parker v. Felgate (1) that if a person has  given instructions to a solicitor to make a will and the solicitor prepares it in accordance with those instructions, all  that is  necessary  to  make it a good will if  executed  by  the testator is that he should be able to think thus far: " If I gave  my  solicitor instructions to prepare  a  will  making certain dispositions about my property I have no doubt  that he has given effect to my intention and I (1)  [1883] 8 P.D. 171. 457 accept  the document which is put before me as  carrying  it out  ". We would again like to emphasize that  the  evidence about  the instructions was very clear and definite in  this case and it was also clearly established that the will which was just and fair was executed faithfully in accordance with the said instructions given by the testator.  In such a case whether or not the will should be admitted to probate  would depend  upon the opinion which the court may form  about the relevant evidence adduced in support of the will.  It  would be difficult to deduce any principle from this decision  and to  seek  to apply it to other cases  without  reference  to their facts. The  last  case  to  which reference must  be  made  is  the decision  of the Privy Council in Harmes v. Hinkson  (1)  It appears that, in this case, the testator George Harmes  died in the city of Regina on April 4, 1941.  Two days later  Mr. Hinkson brought to the manager of the Canada Permanent Trust Company  at its office in Regina a document which  purported

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to  be the will of the said Harmes.  It was dated  April  3, 1941,  and named the Trust Company as executor.   Under  the will Mr. Hinkson by a devise and bequest of the residue  was to benefit to a sum of more than pound 50,000.  Mr.  Hinkson was  by profession a barrister and solicitor and  had  drawn the will with no witness present until after the body of the document  was complete.  Then two nurses were called  in  to witness  its  due  execution.   The  learned  judge  of  the Surrogate Court, after a lengthy trial affirmed the will and decreed  probate in solemn form.  On appeal, by a  majority’ decision  the order of the trial court was  reversed.   Then there  was a further appeal to the Supreme Court of  Canada. It was heard by five learned judges.  By a majority (Hudson, J., alone dissenting) the appeal was allowed and the  decree of the Surrogate Court was restored.  Against this  decision the  appellant  obtained  special leave  to  appeal  to  His Majesty-in-Council  and  it was urged on  his  behalf  that, since  the  document  was charged with  suspicion  from  the outset, probate (1)  (1946) 50 C.W.N. 895. 58 458 should not have been granted to the respondent Hinkson.  The Privy  Council did not accept this contention and  dismissed the  appeal.   It  was  in  dealing  with  the   appellant’s contention about the suspicions surrounding the execution of the  will that Lord Du Parcq made the observations which  we have  already  quoted.  Prima facie the facts on  which  the appellant  relied were strong enough; but the question which according  to  their  Lordships fell to be  decided  in  the appeal was whether the learned trial judge’s decision on the facts  was  erroneous and so manifestly  erroneous  that  an appellate court ought to set it aside.  Their Lordships then referred  with  approval to the principles  which  had  been frequently enunciated as to the respect which the  appellate court  ought  to pay to the opinion which a  Judge  who  has watched  and listened to the witness has formed as to  their credibility  (Powell  v. Streatham  ManoR  Nursing  Home(1). Their Lordships then briefly referred to the evidence led in the  case  and  observed that it  was  impossible  for  them judging  only  from the printed page to decide  between  the various  opinions  of  Mr.  Hinkson’s  character  which  its perusal may leave open for acceptance by different minds. In the result they came to the conclusion in agreement with the Supreme  Court that the trial court’s decision on the  facts must  stand.  It would thus be noticed that the decision  of the Privy Council proceeded more on the basis that there was no  justification  for interfering with a  finding  of  fact recorded  by  the  trial judge particularly  when  the  said ,finding rested on his appreciation of the evidence given by several  witnesses  before him.  In this  connection  it  is significant  to  note that the allegation of  the  appellant that  Mr.  Hinkson  had exercised  undue  influence  on  the testator  was  repelled  by  the  Privy  Council  with   the observation that their acceptance of the judge’s findings of fact leaves them no alternative but to reject it.  Thus this decision  merely serves to illustrate the  importance  which the  Privy Council attached to the finding of fact  recorded by the trial court in this case. (1)  [1935] A.C. 243. 459 It  is  in the light of these decisions that  the  appellant wants  us to consider the evidence which he has  adduced  in the present case.  It would be convenient to begin with  the appellant’s  story  about  the  instructions  given  by  the

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testatrix  for  preparing  the  will.   In  the  plaint  the appellant  has  referred  to  the  sudden  illness  of   the testatrix at Mandya and it is alleged that when she took ill the  testatrix  sent for him with the obvious  intention  of making  arrangements regarding her properties.   Accordingly when  he met her at Mandya she explained all her  intentions to him in the matter of disposing all her properties and her rights  thereto.  In other words, the case made out  in  the plaint  clearly and specifically is that when the  testatrix was  ill at Mandya she sent for the appellant and  gave  him instructions  for preparing a draft of her  will.   However, when  the  appellant  gave  evidence  he  made  a   material improvement  in his story.  According to his  evidence,  the appellant  had  received instructions from the  testatrix  a year before the will was actually drafted.  It was then that the testatrix had given him the gift deed (Ex.  D) and asked him  to  prepare  the draft.   Consistently  with  this  new version the appellant has added in his evidence that when he met  her at Mandya during her illness she reminded him  that she had asked him to make a will for quite some time and she insisted  that  the  draft should be  prepared  without  any delay.  In our opinion, the evidence given by the  appellant on this point is clearly an after-thought and his story that he had received previous instructions cannot be accepted  as true.  Besides, it is somewhat remarkable that, on both  the occasions  when  the testatrix talked to the  appellant  and gave instructions to him no one else was present; and so the proof  of this part of the appellant’s case rests solely  on his  own testimony.  If the testatrix had really thought  of making  a  will  for  over a year  before  it  was  actually executed,  it  is unlikely that she would  not  have  talked about it to other relatives including Kalbagal with whom she was actually staying at the material time. Then it would be necessary to enquire whether the 460 draft  which the appellant prepared was consistent with  the instructions  alleged to have been given by  the  testatrix. The draft, however, has not been produced in the case on the plea  that  it had been destroyed; nor  is  it  specifically stated  by the appellant that this draft was read out  fully to the testatrix before be dictated the contents of the will to  the scribe.  Thus  even the interested testimony of  the appellant  does  not show that be obtained approval  of  the draft  from the testatrix after reading it out fully to  her clause by clause.  It is common ground that Mandya where the testatrix  was lying ill is a place where the assistance  of local  lawyers  would  have been easily  available;  and  in ordinary course the testatrix would have talked to  Kalbagal and the appellant and they would have secured the assistance of  the lawyers for drafting the will; but that is not  what the appellant did.  He went to Mysore and if his evidence is to  be  believed  he prepared the draft  without  any  legal assistance.   Having  regard to the nature of  the  recitals contained in the will it is not easy to accept this part  of the  appellant’s  case.  Besides, as we have  already  indi- cated,  we  find  great difficulty  in  believing  that  the elaborate  recitals  could  have  been  the  result  of  the instructions given by the testatrix herself. It  is in the light of these circumstances that  the  direct evidence  about  the  execution  of  the  will  has  to   be considered.  The evidence of P. W. I is really  inconclusive on  the point about the execution of the will.   Apart  from the  fact  that  he had no clear  recollection  as  to  what happened on the day when he attested the will, this  witness has  frankly  stated  that he  could  not  state  definitely

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whether  the  whole  of the document was read  over  to  the testatrix before he put the attesting signature; and it  was naturally  of very great importance in this case to  produce satisfactory  evidence  that the will was read  out  to  the testatrix  and she understood the nature and effect  of  its contents.  On this point even if P.W. I is believed it  does not  help  the  appellant’s case.  The evidence  of  P.W.  2 cannot carry much weight because his main story that he  was present at the time when the will 461 was  written is wholly inconsistent with the evidence of  P. Ws.  3, 4 and 7. That leaves the evidence of the scribe  and the  appellant  himself.   The scribe (P.W.  3)  is  a  near relation of Kalbagal and even he does not at all support the appellant’s   case  about  previous   instruction   because, according to him, the testatrix said that she would agree to whatever  the  appellant would get  written.   The  relevant evidence  of this witness is clearly inconsistent  with  the appellant’s case about previous instructions and so it would be difficult to treat the evidence of this witness as suffi- cient  to  prove  that the testatrix  fully  understood  the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will.   The evidence  of  the  appellant (P.W. 7)  cannot  obviously  be useful  because it is the evidence of an interested  witness and  is  besides not very satisfactory.  On  behalf  of  the appellant  it  was urged before us by Mr. Iyengar  that  the evidence  of Kalbagal (P.  W. 4) is disinterested and so  it should be believed.  That also appears to be the view  taken by  the trial court.  In our opinion, however, it would  not be   right  or  correct  to  describe  Kalbagal  as   wholly disinterested.  Respondent No. 5 who is the step-brother  of Kalbagal and who stays with him in the same house along with their  father  has admittedly received  substantial  benefit under  the  will.   If an undivided brother of  P.W.  4  has received  this benefit it would not be accurate to say  that the  witness is wholly disinterested.  Besides,  it  appears from the evidence of Kalbagal that he knew nothing about the execution  of the will until the appellant asked him to  get some  attesting witnesses for the will.  This evidence  does not  strike  us as natural or probable; but apart  from  it, even  Kalbagal’s evidence does not show satisfactorily  that the  will was read out to the testatrix so as to enable  her to  understand its full effect before it was signed by  her. That  is the whole of the evidence led by the  appellant  on the question of the execution of the will.  On this evidence we are not prepared to hold that the High Court was in error in  coming to the conclusion that it was not shown that  the testatrix fully 462 understood the contents of the will and put her signature on the   instrument  intending  that  the  recitals   and   the dispositions  in  the  will  should  be  her  recitals   and dispositions. In  this  connection we would like to add that  the  learned trial  judge  appears  to have misdirected  himself  in  law inasmuch  as he thought that the proof of the  signature  of the testatrix on the will raised a presumption that the will had  been  executed  by her.  In support of  this  view  the learned  judge has referred to the decision of the  Calcutta High  Court  in  Surendra Nath Chatterji  v.  Jahnavi  Charn Mukerji (1).  In this case no doubt the Calcutta High  Court has held that on the proof of the signature of the  deceased or his acknowledgment that he has signed the will he will be presumed  to have known the provisions of the instrument  he

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has  signed; but Mr. Justice B. B. Ghose, in  his  judgment, has  also  added that the said presumption is liable  to  be rebutted  by  proof  of suspicious  circumstances  and  that undoubtedly is the true legal position.  What  circumstances would be regarded as suspicious cannot be precisely  defined or  exhaustively  enumerated.  That inevitably  would  be  a question  of fact in each case.  Unfortunately  the  learned trial judge did not properly assess the effect of suspicious circumstances  in the present case to which we have  already referred and that has introduced a serious infirmity in  his final  conclusion.   Incidentally we may also refer  to  the fact  that the appellant obtained a power of  attorney  from the  testatrix on the same day ; and that has given rise  to the   argument  that  the  appellant  was  keen  on   taking possession  and  management  of  the  properties  under  his control  even before the death of the testatrix.   There  is also another circumstance which may be mentioned and that is that  the SubRegistrar, in whose presence the  document  was registered on the same day, has not been examined though  he was alive at the date of the trial.  On these facts then  we are  inclined to hold that the High Court was  justified  in reversing the finding of the trial court oil the question of the due and valid execution of the will. (1)  (1928) I.L.R., 56 Cal. 390. 463 Before we part with this case, however, we would like to add that  the  High  Court was not justified  in  recording  its findings  on two other issues in the present appeal.  As  we have  already indicated, the High Court itself has  observed that, once it was held that the will had not been proved  by the  appellant, no other issue survived for decision.   Even so,  the High Court has expressed its conclusions in  favour of res-pondent I on the question about the character of  the subsequent  acquisitions of items 3, 4 and 5 and  about  the subsisting  title  of the testatrix in respect  of  all  the properties  covered  by  the will.   Having  regard  to  the relationship  between the parties it is difficult to  under- stand  how  mere entries in the revenue record made  in  the name   of   Sadagopalachar  or  the   long   possession   of Sadagopalachar and, after his death, of Narayana lyengar can prove  the transfer of Lakshmamma’s title or its  extinction by adverse possession respectively.  It is apparent that, in recording these conclusions, the High Court has not fully or properly   considered   all  the  relevant   evidence;   and consequently,  the reasons given by it are open  to  serious challenge  on the merits.  Indeed Mr. Viswanatha Sastri  did not appear to be inclined to support the said findings.   We do  not, however, propose to decide these questions  on  the merits  because in view of our conclusion on  the  principal issue  it is unnecessary to consider any other  points.   We would,  therefore, like to make it clear that the  said  two issues  are not decided in the present proceedings  and  may have to be considered afresh between the parties if and when they arise. The  result  is the appeal fails and must be  dismissed  but there will be no order as to costs in this Court.                          Appeal dismissed. 464