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PETITIONER: MRS. JOYCE PRIMROSE PRESTOR(NEE VAS)

       Vs.

RESPONDENT: MISS VERA MARIE VAS & ORS.

DATE OF JUDGMENT:       12/04/1996

BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) PUNCHHI, M.M.

CITATION:  JT 1996 (4)   333        1996 SCALE  (3)596

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PARIPOORNAN, J.       The  plaintiff in  O.S. No.  4/1970,  IInd  Additional District Judge’s  Court Bangalore,  is the appellant herein. She filed  an application  under Section  276 of  the Indian Succession Act, P&SC No.124/1969 for the grant of Letters of Administration of  the estate of the deceased, Mrs. primrose Mary Vas  (her mother).  Mrs. Primrose Mary Vas had executed Ex. P-1,  will Dated  19.6.1964. The  first defendant in the suit (husband of the testatrix) and the second defendant are the executors  of the  said will.  The plaintiff called upon the executors  on 6.3.1969  to take out probate. She was not favoured with  any reply.  On 26.7.1969,  M/S. D.A.  Costa & D.A. Costa, Advocates informed the plaintiff that the second defendant was  unwilling to act as the executor and that the first defendant was intending to contest the Will. It was in these circumstances  the plaintiff  as a lagatee, prayed for the grant  of letters of Administration of the estate of the deceased, Mrs. Primrose Mary Vas (her mother) with a copy of the will annexed as Annexure, Ex.P-1. The first defendant in the suit  is Mr.  Emmanuel Joseph Vas, husband of testatrix, the second  defendant is  one of  the executors of the Will, plaintiff, defendants 3 and 4 are daughters of the testatrix and the  5th defendant  is the  testatrix’s son.  We will be referring to  the parties  in  this  appeal,  as  they  were arrayed in  the suit.  The first  defendant died pending the suit and defendants 3 to 5 were recorded as his legal heirs. In  this  appeal  filled  by  the  plaintiff,  (one  of  the daughters and a legatee under the Will), the respondents are defendants 3,  4 and  5 in  the suit.  The  trial  court  by judgment  dated  29.1.1974,  held  that  the  Will  of  Mrs. Primrose Mary  Vas dated  19.6.1964 is  perfectly valid  and genuine, and ordered thus:      "The suit is decreed. The plaintiff      shall   be   granted   letters   of      administration with  a copy  of the

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    Will (Ex.P.1)  ennexed, subject  to      the following  conditions Viz., (1)      that  she  executes  the  necessary      administration bond  under  Section      291 of the Indian Succession Act to      the extent  of  the  value  of  the      bequest made  to deft.  3 &  4  (2)      that  she   produces  Estate   Duty      clearance certificate  and (3) that      she pays  the necessary  court  fee      for  drawing   up  the  letters  of      administration. The  defendants.  3      and 4 will pay the costs of this to      the plaintiff and bear their own." In appeal,  by defendants  3 and  4, a Division Bench of the Karnataka High Court, by judgment dated. 11.7.1978, reversed the said  judgment and  held that  the Will  is shrouded  in suspicion and  the propounder  (the plaintiff) has failed to satisfy " the judicial conscience, dispelling all the doubts that arise  in this  case, that the Will, Ex.P-1 was legally and properly  executed by  Mrs. Vas with attestation by Mrs. Gadre and another." 2.    The  plaintiff filed  S.S.P. (C)  No. 991/79  and this Court granted  leave to appal against the aforesaid judgment of the  High Court  of Karnataka  by order dated 13.12.1979. and hence this appeal. 3    In  this  appeal  the  main  question  that  falls  for consideration is,  the legality  and validity  of  the  Will dated  19.6.1964   executed  by  the  testatrix,  late  Mrs. Primrose Mary Vas. 4    A few  facts, which  are not  in controversy  should be borne in mind in adjudicating the case. The testatrix is one Mrs. Primrose  Mary Vas.  She was  running a  hotel, namely, "Terra Vera",  at Bangalore.  She was aged 63 at the time of execution of  the Will,  Ex.P-1 dated 19.6.1964. It has come out in  evidence  that  she  was  admitted  to  Hospital  on 21.6.1964 and  was  operated  upon  on  26.6.1964.  She  was discharged on  12.7.1964. The testatrix died in Bangalore on 23.6.1968, i.e., four years after the execution of the Will. The first defendant, Mr. Emmanuel Joseph Vas, an Advocate by profession, was 80 years old at the time of execution of the Will.  He  was  chionic  diabetic  patient.  His  toes  were amputated. He had his own properties. He had executed a Will regarding his  properties wherein  nothing was  given to the plaintiff.  The   first  defendant   (husband)  and   second defendant, a retired District Judge are the executors of the Will .  They failed  to take  steps to obtain probate of the Will.  The   3rd  defendant,  sister  of  the  plaintiff  is unmarried. The 4th defendant, another sister, is married and is in  Bombay with  family. The  5th defendant is the son of testatrix. He is America since 1954. A citizen of U.S.A., he is admittedly  well off,  in  that  country.  He  is  not  a beneficiary  under  the  Will,  Ex.P-1.  Though  notice  was personally served on him, he did not enter appearance either in the courts below or in this Court. He did not contest the Will. It  is admitted  by the  3rd defendant that the entire Will (Ex.P.1)  is in  the handwriting  of the testatrix, her mother. It  is a  "holograph Will"  The Will (Ex.P-1) was in the custody  of the first defendant. There are two attesters to  Ex.P-1.   The  first  attester  (PW-1)  is  Mrs.  Gadre, admittedly, a  frequent visitor to Bangalore and Hotel Terra Vera. The  other attester  is Mr.  Fermie, a  retired  Post- Master General,  and a permanent boarder in the hotel, Terra Vera. It has come out in evidence that Mr. Fermie, the other attester was no longer alive when the suit came up for trial

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and so  was not examined. Apart form one of the attesters to the Will  (PW-1), the  plaintiff, examined  herself as  PW-2 Under the Will, Ex.P-1, the testatrix had given equal shares to all the three daughters,. It is evident from the evidence of PW-1 that the plaintiff was not present when the Will was executed and  signed by the testatrix and the attesters, The defendants did  not in  fact challenge  that  the  Will  was executed by the testatrix Mrs. Primrose Mary Vas. Their only attack was  about the validity of the same as one tainted by undue influence of the plaintiff. 5    The trial court framed the following five issues:      "1. Whether  the  plaintiff  proves      the due execution of the suit Will?      2. Whether  plaintiff  proves  that      the   testator    had   the   sound      disposing state  of mind to execute      the said Will?      3. Whether the defendants prove the      alleged undue  influence  and  that      the  Will   is  tainted   by   such      influence?      4. Whether the Will is valid?      5. What relief ?" 6.   After discussion  of the  relevant evidence,  the trial court entered the following findings:      "Issue  No.1:   THE  plaintiff  has      proved due execution of the Will,      Issue No2: The plaintiff has proved      that the  testator  had  the  sound      disposing state  of mind to execute      the said will;      Issue  No3:   The  defendants  have      failed to  prove the  alleged undue      influence nor have they proved that      the  will   is  tainted   by   such      influence;      Issue No.4:  The Will  is perfectly      valid;      Issue  No.5:   The   plaintiff   is      entitled to  the reliefs   she  has      sought." 7.   We will  now extract  the contents  of Ex.P-1, original Will executed by Mrs. Primrose Mary Vas:      "  This   is  the   last  Will  and      Testament  of  Mrs.  Primrose  Mary      Vas, wife of Emmanuel Joseph Vas at      present residing  in "Terra  Vera",      St.  Mark’s   Road,  Bangalore,   I      hereby appoint  my husband Emmanuel      Joseph Vas  and Mr.  Joseph Richard      Nazareth  as   joint  and   several      executors  of   this  my  Will  and      Testament. Out  of my  money in the      State Bank  of Mysore, in the State      Bank of  India and  the Post Office      Savings Bank  in the  Shoolay  Post      Office,  I   bequeath  Rupees  Five      Thousand  to   my  daughter  Dulcie      Alice Vas  and Rupees Five thousand      to  my   daughter  Joyce   Primrose      Preston. I  hold shares  in the new      India Assurance  Co., Ltd.  These I      give to my daughter Vera Marie Vas.      The rest  of my  money in the State      Bank of  Mysore, the  State Bank of

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    India and  the Post  Office Savings      Bank I  give to  my  daughter  Vera      Marie  Vas.   I  bequeath  my  real      property  "   Terra  Vera"  on  St.      Mark’s road  in Bangalore  with all      the  furniture,      crockery   and      cutlery it contains in equal shares      to my  three daughters  Vera  Marie      Vas, Dulcie  Alice  Vas  and  Joyce      primrose   Preston.    In   witness      whereof I  Primrose Mary  Vas  have      this nineteenth  day of  June  1964      set my hand.                     Sd.Primrose Mary Vas                              (Ex.P1(A) )           Signed by Primrose Mary Vas in      the presence  of both of us present      at  the   same  time   and  in  the      presence of each other.         Sd.(Mrs.) Olive Gadre-Ex.P1(b)." 8    The main  attack on  the will  was pleaded by the first defendant.  Defendants   3  and  4  filed  a  joint  written statement and  took up  the plea substantially in conformity with the  one taken  up by the first defendant. The gravamen of the  charge against  the validity  of the  Will  runs  as follows.      It was  the first  defendant who purchased "Terra Vera" buildings in 1941 jointly in his name and in the name of his wife. Later,  he conveyed  the  property  to  his  wife.  He purchased necessary  furniture, crockery etc. for the hotel. It was  without his knowledge or consent that his wife (Mrs. Vas )  made the  Will. It  was so  made provisionally  under peculiar circumstances.  Just before  the admission  of Mrs. Vas to  the hospital for operation, 3rd defendant who was at Bombay, was  informed. The  plaintiff and  her husband  were staying with  the deceased. At that time, when the  deceased was ailing, was about to be admitted to the hospital and was not in  sound disposing  state of  mind, The  plaintiff kept that Will with herself and she inserted it in the drawers of the first defendant’s room sometime after the demise of Mrs. Vas. The  Will was  found by the 3rd defendant who showed it to the  plaintiff and  then, handed  over the  same to their lawyer, D.W. 3. Till then, the first defendant was not aware of the  same. The  Will  appeared  suddenly  under  peculiar circumstances in the first defendant’s drawers. According to the firs  defendant, it  should have  been inserted  in  his drawer by  the plaintiff  herself. The  plaintiff  was  well provided for and a separate house was purchased for her. The deceased completely  forgot about  the Will and subsequently expressed her  intention contrary  to the  recitals  in  the Will. According  to the  deceased, it  was  understood  that Terre Vera  should become the property of the defendants. It is thereafter,  the central  front plot in the said property was given  as a  gift by  the deceased  to the plaintiff. In these circumstances, the plea was that the Will is not valid and cannot  be considered  to be the last Will and testament of the  deceased  because  she  had  subsequently,  departed substantially from the intended distribution of the property by that  Will. In substance, the plea was that the plaintiff having got  the will  when the  deceased  was  about  to  be admitted to hospital, kept it with her secretly and the Will came into existence under suspicious circumstances. 9    After referring  to the legal requirements envisaged in Section 58  of the  Indian Succession  Act and Section 68 of the Indian  Evidence Act  and  the  background  afforded  by

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various facts stated in paragraph 4 (supra), the trial court found the following:-      Ex.P-1,  Will,   is  in  the  own  handwriting  of  the testatrix. It  was attested  by PW-1,  Mrs. Gadre  and other attester, Mr. Fermie being dead, could not be examined. Both the attesters were permanent boarders in Terra Vera. The 3rd Defendant admitted  in evidence that the Will is entirely in the handwriting of her mother and it bears her signature. It was she who handed over the Will to DW-3, Advocate, for safe custody. DW-3  stated that  the  deceased  was  one  of  his clients and  had in  fact, got  three Gift  Deeds drafted by him, relating  to the  front portions  of Terra  Vera. PW-1, stated that Mr. Fermie attested the will in her presence and in the  presence of the testatrix and that Mrs. Vas was in a sound state  of mind  at the  time of  the execution  of the Will. She  was not  cross-examined on that score. Indeed, it was the  first defendant who called PW-1 for attestation and that statement was also not challenged in cross-examination. The above  crucial aspects  raise a  strong presumption that Ex.P-1 is  genuine document. Referring to the two statements pointed out by PW-1 in her statement that Mrs. Vas wrote the caption appearing above the signatures of the attesters, and that Mrs.  Vas had  written and  signed the Will by the time they put  their attestations, the trial court held that PW-1 has pointedly stated in chief-examination and also clarified in re-examination  that they  put  their  attestations  only after Mrs.  Vas. had  signed the Will and the writing of the statement in  the caption  does not  affect the execution of the Will,  and is  not serious  discrepancy. The  Court held that it  was satisfied  that the  Will is  duly executed and attested, and it was also established from the evidence that Mrs. Vas  was in  a sound  state of mind when making out the Will the  trial court  also found that the attesters and the testator signed  the Will  in the  presence of  each  other. Referring to the suspicious circumstances pointed out by the defence, namely,  (1) the  husband and son were not provided anything; (2)  that the  Will was  attested by strangers and not by  close friends;  (3) that  Mrs. Vas wrote the will on the eve of her operation, the trial court held. thus:      (1) The  husband was  aged 80  years and  had  his  own      properties. The  son was well settled and was in U.S.A.      ever since 1954. Mrs. Vas wanted to give her properties      to her three daughters only.      (2) PW-1,  Mrs. Gadre  was frequently  staying in Terra      Vera and  she was attached to Mrs. Vas, as is seen from      her conduct  before and  subsequent to the execution of      the Will and Mr. Fermie was also a permanent boarder in      Terra Vera,  and at  the time  of the  execution of the      Will, these two were the only permanent boarders in the      Terre Vera Hotel.      (3) 3rd  defendant herself  admitted that  Mrs. Vas was      not having  any serious  ailment and  the operation she      underwent was a simple one, and the deceased was active      till the  very last.  Coupled with the fact that it was      the 3rd  defendant who  found the Will in the drawer of      Mr. Vas, kept it with her, and later, handed over it to      DW-3,  the  trial  court  pointed  out  that  there  is      absolutely no  suspicious circumstance  surrounding the      will. Proceeding further, the trial court also observed      that the burden of proof is on the defence to show that      the Will was got up by undue influence by the plaintiff      and, it  was not  so shown. The plaintiff was not aware      about the  existence of  the Will,  nor was Mrs. Vas in      position to  be dominated  by one of her daughters, the      plaintiff.  On  the  other  hand,  the  fact  that  the

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    testatrix gave  her property  in equal  shares  to  her      daughters proved  positively that she was not under any      undue influence.  The plaintiff  was not  even  present      when the  Will was  signed by  Mrs. Vas and attested by      two attesters  and the  entire  Will  was  in  the  own      handwriting of  Mrs. Vas. These facts will show that no      undue influence,  as alleged, could be exercised. There      was absolutely no material in the evidence of DW-1, DW-      2, DW-4  and DW-5, which will affect the genuineness of      the Will, Ex.P-1, executed by Mrs. Vas. 10.  The High  Court in  the appeal filed by defendant 3 and 4, re-appreciating  the evidence,  the circumstances and the probabilities,  formed   "its  own   impression"  about  the evidence in the case, and "taking an over all picture of the entire case  as revealed  in the  evidence" held that it was "constrained to  observe that  this case of the alleged Will is shrouded in suspicion". 11.  We heard  counsel. As  stated in  "The Law  of Wills in India and  Pakistan" by  Mantha Ramamurthi,  at page 81, the general  principles   governing  the   presumption  of   due execution and attestation, in the case of Wills are:-      "If a  will appears  on the face of      it to  have been  duly executed and      attested  in  accordance  with  the      requirements of  the Act, the maxim      "omnia  proe   sumuntur  rite  esse      acta,"  applies,   unless   it   is      clearly  proved  by  the  attesting      witnesses that  the will  is not in      fact duly  executed. The  Court  of      Probate has long been accustomed to      give   great    weight    to    the      presumption   of    due   execution      arising  from   the  regularity  ex      facie  of  the  testamentary  paper      produced  where   no  suspicion  of      fraud has occurred.           The maxim "Omnia Proe sumuntur      rite esse acta" is an expression in      a  short   form,  of  a  reasonable      probability, and of the property in      point of  law  on  acting  on  such      probability. The maxim expresses an      inference which  may reasonably  be      drawn when  an intention to do some      formal act is established. In Blake      v. Knight  Sir Herbert  Jenner Fust      observed    "Is    it    absolutely      necessary    to    have    positive      affirmative   testimony    by   the      subscribed witnesses  that the will      was  actually   signed   in   their      presence. or  actually acknowledged      in   their   presence   ?   Is   it      absolutely  necessary,   under  all      circumstances  that  the  witnesses      should concur in stating that these      acts  took   place  ?   or  is   it      absolutely  necessary,   where  the      witnesses    will     not     swear      positively, that  the Court  should      pronounce against  the validity  of      the will.  I think  these  are  not      absolute requisites to the validity      of the will."

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         Consequently,    "where    the      evidence of  attesting witnesses is      vague   or    doubtful   or    even      conflicting the Court may take into      consideration the  circumstances of      the  case   and  judge   from  them      collectively      whether       the      requirements of  the  Statute  were      complied with;  in other  words the      Court  may,   on  consideration  of      other  evidence  or  of  the  whole      circumstances of  the case, come to      the    conclusion     that    their      recollection  is   at  fault,  that      their evidence  is of  a suspicious      character,  of   that   they   were      willfully misleading the Court, and      accordingly     disregard     their      testimony and  pronounce in  favour      of the will."                            (pages 81-82)                      (emphasis supplied)      The author  has also  categorized the various instances where the  maxim has  been applied  in different  cases  (1) absence of  evidence ;  (2) some  attesters speaking for and some against the will; (3) attesters honest but mistaken and (4) attesters giving false evidence. 12.  while the  presumption in the case of ordinary Wills is as stated  above, in  the case  of  "holograph  Wills",  the presumption is  all the more - a greater presumption. Ex.P-1 is a  "holograph will".  It is  one which  is wholly  in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar  v. Akhil  Chandra Majumdar  (AIR 1960 Cal. 551 at P. 552) stated about such a Will, thus:-      "The whole of this Will was written      in the hand by the testator himself      in  English.   The  handwriting  is      clear and  firm. The  law  makes  a      great presumption  in favour of the      genuineness of  holograph will  for      the very  good reason that the mind      of  the   testator  in   physically      writing out  his own  will is  more      apparent  in  holograph  will  than      where his  signature alone  appears      to either  a typed  script or  to a      script written by somebody else."                      (emphasis supplied) The writing  of the  Will and  signature of  the testator ar admitted. There  is  also  due  and  proper  attestation  in accordance  with   the  relevant  statutory  provisions.  No suspicious circumstance appears on the face of the document, Ex.P-1. The Will appears to be moderate and rational. Viewed form the  above angle,  there is  a great presumption - even bordering  on   actual  proof   of  the  due  execution  and attestation of the Will. 13.  Defendants have  urged a  few suspicious  circumstances and have  alleged that  the Will  was executed  by the undue influence exercised  by the  plaintiff. Notwithstanding  the high degree  of presumption  available  in  the  case  of  a holograph Will,  which on  the face  of it.  appears  to  be properly  and   dully  executed   and  attested,   have  the defendants let  in cogent  evidence  to  off  set  the  said presumption and/or  have succeeded  in proving  the  special plea   set up  by them,  falls for our consideration. In our

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considered view, the answer can be only in the negative. 14.  We were taken through the judgments of the Courts below and also  the evidence  of witness.  We should  say that the entire approach  made by  the high Court, the way it scanned the evidence  with  minute  particulars,  reappreciated  the evidence,  and   substituted  its  "own  impressions"’  were misconceived and  misplaced. The  High Court referred to the decisions of  this Court  laying down  the principles  to be borne in  mind as to now a Will should be proved in Court of law, especially  when  there  are  suspicious  circumstances surrounding  the   facts  of  the  execution  of  the  Will. Reference was  made to  the  decisions  in  H.  Venkatachala Iyengar v. B.N. Thimmajamma, (AIR 1959 SC 443), Rani Purnima Debi and  another v. Kumar Khagendra Narayan Dev and another (AIR 1962 SC 567), Shashikumar Banerjee and others v. Subodh kumar Banerjee  and others  (AIR 1964  SC  529),  Ramchandra Rambux v.  Champabai and  others (AIR 1965 SC 354). Surendra Pal and  others v.  Dr. (Mrs.)  Saraswati Arora  and another (AIR 1974  SC 1999)  and Smt. Jaswant Kaur v. Smt Amrit Kaur and others  (Air 1977  SC 74).  The general principles which govern the  proving of  a Will  are stated  in the aforesaid decisions  .   Of  the  above,  the  decisions  reported  in Shashikumar Banerjee’s  case (AIR  1964 SC  529) is  by  the Constitution Bench. Therein, paragraph (4), the law has been succinctly stated thus at page 531:      "The principles  which governed the      proving of a will are well settled;      (see  H.  Venkatachala  Iyengar  v.      B.N. Thimmajamma, 1959 Supp (1) SCR      426 :  (AIR 1959  SC 443)  and Rani      Purnima Devi  v. Khagandra  Narayan      Dev, (1962) 3 SCR 195.( AIR 1962 SC      567). the  mode of  proving a  will      does  not  ordinarily  differ  form      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.      The mode  of proving the absence of      suspicious            circumstances      surrounding the  execution  of  the      will,   proof    of    testamentary      capacity and  the signature  of the      testator  as  required  by  law  is      sufficient to  discharge the  onus.      Where however  there are suspicious      circumstances, the  onus is  on the      propounder to  explain them  to the      satisfaction of  the  court  before      the  court   accepts  the  will  as      genuine. Where the caveator alleges      undue    influence.    fraud    and      coercion, the  onus is  on  him  to      prove the  same. Even  where  there      are   no   such   pleas   but   the      circumstances give  rise to doubts,      it is for the propounder to satisfy      the conscience  of the  court.  The      suspicious circumstances  may be as      to the genuineness of the signature      of the  testator, the  condition of      the    testator’s     mind,     the      dispositions made in the will being      unnatural improbable  or unfair  in

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    the light of relevant circumstances      or there might be other indication,      in  the   will  to  show  that  the      testator,s mind  was not  free.  In      such  a   case  the   court   would      naturally    expect     that    all      legitimate  suspicion   should   be      completely   removed   before   the      document is  accepted as  the  last      will  of   the  testator.   If  the      propounder himself  takes  part  in      the execution  of  the  will  which      confers a  substantial circumstance      to be  taken into  account, and the      propounder is  required  to  remove      the    doubts    by    clear    and      satisfactory   evidence.   If   the      propounder succeeds in removing the      suspicious circumstances  the court      would grant  probate, even  if  the      will might  be unnatural  and might      cut off  wholly  or  in  part  near      relation.                      (emphasis supplied) 15.  In applying  the above general principles to particular cases the  nature of  the Will, the pleadings of the parties in the  case, facts  admitted or proved and the presumptions available in law, will have to be carefully given effect to. The case  of a  "holograph Will’  which is admittedly in the handwriting of  the testator,  is a  special case which will require a  different approach in considering the evidence in the case,  to find  whether the  Will has been duly executed and attested. The approach to be made in such cases has been stated by  the Constitution  Bench in Shashikumar Banerjee’s case, (supra)  at page  532 paragraph (5). In that case, the court referred  to certain  undisputed preliminary  facts as follows: The testator, a well-known wealthy lawyer, who died at the  age of  97, had executed a Will when he has 93 years old. He  had made  provision for  his heirs  by executing  a number of  documents, and the Will referred to the remaining property. The  Will was witnessed by two persons. The entire Will was  in the  handwriting of  the testator, corrected in various places  and corrections  were initialled  by him. It was in the handwriting of the testator, corrected in various places and  corrections  were  initialled  by  him.  It  was admitted that the signature at the bottom of the Will was of the testator.  The dispositions were very clear and detailed and it  could not be said to be an unnatural document. There was no  evidence to  show that the propounders took any part in  the   execution  of   the  Will.   After  stating  these preliminary facts,  the court stated the approach to be made in the case of a ’holograph Will’, thus :      "Further the  fact that the will is      holograph will  and  admittedly  in      the hand of the testator and in the      last  paragraph  of  the  will  the      testator had  stated  that  he  and      signed the  will in the presence of      the witnesses and the witnesses had      and had  signed it  in his presence      and in  the presence  of each other      raise  strong  presumption  of  its      regularity and  of its  being  duly      executed  and  attested.  On  these      facts   there    is   hardly    any

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    suspicious circumstance attached to      this  will   and  it  will  in  our      opinion   require    very    little      evidence to prove due execution and      attestation of  the will.  There is      no doubt  about the  genuineness or      the signature  of the testator, for      it is  admitted that  the signature      at the foot of the will is his. The      condition of the testator’s mind is      also not in doubt and he apparently      had  full   testamentary   capacity      right upto  March 1947, even though      he was  an old man of about 97 when      he     died     on     April     1,      1947...............There is nothing      to show  that the dispositions were      not the result of the free will and      mind of  the testator. Further, the      propounders      (namely,       the      appellants) had  nothing to do with      the execution  of the will and thus      there  are   really  no  suspicious      circumstances at  all in this case.      All  that   was  required   was  to      formally  prove   it,  though   the      signature  of   the  testator   was      admitted and  it was  also admitted      that the  whole  will  was  in  his      handwriting.   It    is   in    the      background of  these  circumstances      that  we   have  to   consider  the      evidence  of   the  two   attesting      witnesses..................."                      (emphasis supplied) 16.  In the judgment under appeal, the High Court notice the aforesaid decision  of this  Court in Shashikumar Banerjee’s case (supra)  and has  quoted the  following passages in the said case :      "In  the   case  of   SHASHI  KUMAR      BANERJEE  AND  OTHERS  -VS-  SUBODH      KUMAR BANERJEE (AIR 1964 S.C. 529).      His Lordship  Justice Wanchoo,  has      laid   down:..................Where      however   there    are   suspicious      circumstances the  onus is  on  the      propounder to  explain them  to the      satisfaction of  the  court  before      the court  accepts the  Will as the      Will as genuine.........."      ".............  in   the  case   of      SHASHIKUMAR BANERJEE AND OTHERS VS.      SUBODH KUMAR  BANERJEE AND  OTHERS-      (A.I.R. 1964  S.C.  529).  Therein,      His Lordship,  Justice Wanchoo, J.,      has  observed  in  para  5  of  the      judgment this :           "The entire  Will  is  in  the           handwriting  of  the  testator           and  has   been  corrected  in           various   places    and    the           corrections     have      been           initialled  by   the  testator           .................On      these           facts  these   is  hardly  any

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         suspicious       circumstances           attached to  this Will  and it           will in  our  opinion  require           very little  evidence to prove           due execution  and attestation           of the will." " After quoting  the  above  truncated  passages  and  without adverting at  all to the crucial passages, indicating as how the evidence of the attesting witnesses should be evaluated, in the  case of  ’holograph wills’  (extracted hereinabove), the learned  judges of the High court stated in our opinion, wrongly, that  the facts of this case are entirely different and so,  the appreciation  of the evidence of the case is to he done on the "unique features" of each case. 17.  We are afraid that the High Court failed to give effect to the  strong presumption  of regularity  and due execution and attestation  of the holograph will, in the instant case. Admittedly, the  Will, Ex.p-1,  is in the handwriting of the testator as  spoken to  by the  3rd defendant  herself.  The herself. The  facts in this case in great measure conform to the broad  facts and  circumstances detailed  in the case of "holograph will"  in Shashikumar  Banerjee’s (supra) In this case the  3rd defendant  admitted in  cross-examination that her mother,  Mrs. Vas  "was active  till the  last" and that "she used  to go  to mass every morning." She further stated that the  Will is  in the  handwriting of  the testator. She stated. "I  see Ext.p-1. This is the will. It is entirely in my mother’s  handwriting. I  am fully  acquainted  with  her handwriting . Ext.P-1(a) is the signature of my mother." The evidence of  PW-1, one  of the  attesters, is categoric that the Will  was attested  by her  and  a  co-attester  in  the presence of  the testatrix  and that  the testatrix was in a sound state  of mind  at the  time of execution of the Will. dW-3, Advocate by profession, stated -" I am acquainted with the signature  and writing of Mrs. Vas (Testator). I see the Will Ext.P-1. the will, was signed and executed. By ex. P-1, all daughters  have been given equal shares and the document cannot be  said to  be unnatural.  In these circumstances, a strong or  high degree  of presumption of the regularity and of due  execution and  attestation of  the Will,  arose.  As stated  by  this  court  in  Shashi  Kumar  Banerjee’s  case (supra), it  is in this background, the evidence in the case including that  of the  attesting witnesses should have been examined and  what was  required was  only to formally prove the Will,  and very  little evidence  to prove due execution and attestation  of the will, was alone called for. The High Court totally  ignored the above vital aspects. On the other hand, the  High Court opined that the facts of this case are entirely different from those of Shashikumar Banerjee’s case (supra), and  the unique  features should  be scanned  ,  in great detail.  In the process, the High Court re-appreciated the entire  evidence, through  a microscope, as it were, and indulged in surmises and conjectures,      The question that arose for consideration in this case, is largely  one of fact. the decision of which depended upon the appreciation  of the  oral evidence adduced in the case. The weight of importance that should be given to the finding of the trial judge who had occasion to watch the demeanor of the  witnesses   and  assess   their  credibility   and  the restraints that should be observed by the Appellate Court in such Cases,  have been  stated by  this Court  in more cases than one,  vide Sarju  Prasad  Ramdoe  Saha  V.  Jwaleshwari Pratap Narain Singh and Others (AIR 1951 SC 120), Madhusudan Das v.  Smt. Narayani Bai and Others (Air 1983 SC 114), etc. It need  hardly be stated that the onus is on the appellant,

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to show  that the  judgment appealed against is wrong. It is for the  appellant to show where where the assessment of the court  below   has  gone   wrong  and   rot  merely  seek  a reassessment of  the evidence.  We regret  to note  that the High court in the instant case, has not at all borne in mind the above  salient principles  of law in re-appreciating the entire evidence  in this  case through  a microscope,  as it were, and drawing its own "inferences’ and "impressions". 18.  We shall only quote a few passages form the judgment of the High  Court to  show how  the approach of the High Court was palpably  wrong, which  vitiated the ultimate conclusion reached by it.      "Admittedly, Mrs.  Vas was  in  her      63rd years  of age  at the time she      wrote out  Exhibit P-1.  It was  on      the eve  of her  operation. She was      suffering form  high blood pressure      and  hospital  records  would  show      that she  was suffering form uterus      complaint  for  4-5  years.  It  is      probable, therefore,  that she  was      in nervous tension on the date when      the Will was written out by her and      obviously, Mrs.  preston was  in  a      similar operation,  to successfully      dominate over  Mrs Vas  and prevail      upon her  to write  out  the  Will.      This circumstance  cannot be viewed      in  its  isolation.  It  is  to  be      viewed     with      the      other      circumstances.  arising   in   this      case."      "That being  so, it is normally not      expected of  Mrs. Vas  to execute a      Will,  if  at  all,  with  out  the      knowledge and consent of Mr. Vas in      this connection,  the  trial  Court      has rightly  observed that the form      of the  will and  the language used      would  clearly  indicate  that  the      draft was  pre pared  by a  lawyer.      The  trial   Court   however,   has      further   stated,   that   in   all      probability, Mr.  Vas.  husband  of      the testatrix, must have helped her      in getting  the draft  prepared and      that he  must have  know about  the      execution of  the Will  by his wife      Mrs. Vas. Though at the first blush      it looks  probable the  evidence on      record does  not  support  such  an      inference."      "The defendants have examined D.W.1      Mrs.  Susala   Heredia,  D.W.2  Mr.      M.A.J. Vs.  Niak, D.W.3  Mr. George      D’Costa  and   D.W.  4   Mr.   F.J.      Heredia,   in   addition   to   the      evidence of  Miss Vera  Vas. All of      them have  specifically stated that      Mr.  Vas  told  them  that  he  was      unware of the alleged Will executed      by his  wife and  that  it  is  his      daughter Mrs. joyce Preston who had      managed to  get such  Will attested      and planted in his chest drawer."

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    "If really Mrs. Vas executed a Will      and got  it attested as if made out      by the  propounder, it  is probable      to expect  that she would have kept      the Will  with her  husband Mr. Vas      who  was   named  as   one  of  the      executors in the Will."      "In  the  circumstances  the  sworn      statement of  Vera Vas that she did      not know  anything about  the  Will      till Mrs.  Preston told  her  about      the Will  after the  death  of  her      mother is  probable and  believable      ."      "..............the      surrounding      circumstances discussed by us above      render   it   probable   that   the      incomplete   Will    was   in   her      possession and  subsequently, after      getting the  attestation done,  she      induced Vera  Vas to  search for it      and after  some days, she placed it      in her  father’s chest  drawer  and      subsequently, when  it was found by      Vera Vas,  she rushed with the Will      and showed  it to  Mrs. Preston and      subsequently, told it to D.W.3, her      mother’s  lawyer,  to  probate  the      Will."      "It is in this context that we have      to appreciate  the evidence of Mrs.      Gadre, the  alleged attester of the      will."      "The  submission   of  the  learned      Counsel for  the appellants that it      was Mrs.  Preston who  got the Will      written by  her mother  as per  the      draft got  pre pared  by her,  took      custody of  it and got subsequently      the attestation  of Mrs.  Gadre and      one  other   witness,   cannot   be      brushed aside  as  groundless.  The      strong  and   reasonable  suspicion      arising this context is not cleared      by the  propounder so as to satisfy      the Court  has entirely  missed  to      appreciate this aspect."      "...........if really  Mrs. Vas had      made a  Will as  per  exhibit  p-1,      nothing  could   prevent  her  form      changing the  Will on form revoking      is.  She   kept   quiet   obviously      because  there   was  no  completed      will,. There  cannot be  any  other      plausible reason of it."      "The   learned    Counsel   rightly      pointed out that when she wanted to      execute a  gift deed  in favour  of      her daughters, she approached D.W.3      M.D’Costa, an  Advocate and got the      gift deeds  written and  registered      with his  assistance. Besides,  she      also told  D.W.3 that she wanted to      make a  Will. Hence,  the fact that      she herself  wrote out the draft of

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    the  will   and  signed   it  would      further show  that it  was  at  the      importunity  and  pressure  of  her      daughter who,  perhaps brought  the      draft to  her  and  that  Mrs.  Vas      copied  it   out  though   she  was      cautious  enough   not  to  get  it      attested."      "Thus, taking  an over  all picture      of the  entire case  as revealed in      the evidence, we are constrained to      observe  that   this  case  of  the      alleged   Will   is   shrouded   in      suspicion.                      (emphasis supplied) 19.  We have  already held that Ex.p-1 " holograph Will" and the facts  of the  resent case  are substantially similar to the one in Shashikumar Banerjee’s case (supra). All that was required was  to formally  prove Ex.P-1 (Will). The evidence of PW-1,  the attester, which has been accepted by the trial court, is  categorize and  she stated  in chief  examination thus:      "I know  the petitioner. I had seen      her mother.  I know  her form 1958.      The mother  of the  petitioner  was      running boarding & lodging house in      St. Marks Road. The name was "Terra      Vera" hotel.  I stayed in her hotel      on many  occasions approximately 2-      1/2 months  each time,  when I came      to Bangalore  on holiday  -  During      June 1964.  I was  staying in  that      hotel with my husband. At that time      I  was   asked  to  attest  a  Will      executed  by   the  mother  of  the      petitioner. Miss Preimrose Mary Vas      executed  that  Will.  her  husband      E.J. Vas asked me to be present and      sign  the   Will.  Mr.   Vas,  Mrs.      Primrose Vas  myself and  the other      attesting witness  are  Mr.  Firmie      were present."      "I see  Ex.P.1. It is the last Will      Mrs. Primrose Mary Vas the testator      has put her signature at Ex.P-1.(a)      in my  presence.  I  have  attested      Ex.P-1,  Will,   at  Ex.P-1(b)  the      other attester  D.P. Fermie put his      attestation after my attestation in      my presence  and in the presence of      the testator. The deceased testator      was  perfectly   fit  mentally  and      physically when  she executed Ex.P-      1, Will.  The entire Will Ex.P-1 is      in the  handwriting of the testator      herself.   The   husband   of   the      testator herself.  The  husband  of      the testator  was also present when      the deceased  executed  of  Ex.P-1.      The husband  of the testator called      me to be present at the time of the      execution of Ex.P-1."                      (emphasis supplied) Nothing was  brought out  in cross  examination to discredit this witness. The attesting witnesses were frequent visitors

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to Bangalore  and permanent  boarders in  hotel "Terra Vera" There was  absolutely no  cross examination  on the  various aspects stated  by the  witness regarding  the due execution and attestation  of the  Will, as extracted hereinabove. The trial Court adverted to the above crucial aspects arising in this case  as also  the admission  by the 3rd defendant that the Will  is entirely in the handwriting of her mother, that it bears  her signature  and  she  found  the  will  in  her father’s drawer  and handed  over Ex.P-2,  Will to  D.W.  3, Advocate. This fact is also corroborated by D.W.3, advocate. The trial  Court laid  emphasis on  such crutial aspects and held that  the Will  a holograph  Will  herein  -  was  duly executed and  attested and  Mrs. Vas was in a sound state of mind when  Ex.P-1, Will,  was executed.  The said finding is based  on   a  proper   application  of   the  law  and  the unassailable evidence available in this case. So also, trial Court, after  adverting to  the pleas  urged by the defence, held that  there are no suspicious circumstances surrounding the Will  and that  there is  no evidence  to show  that the plaintiff exercised  undue influence  over  Mrs.  Vas.  Such finding based  on proper  application of  the  law  and  the evidence available  in the  case was  reversed by  the  High Court by  a totally  wrong  approach  to  the  question  and without giving  effect to the "strong presumption" available in the  case regarding the presumption of regularity and due execution and attestation of the will Ex.p-1. 20.  We  are,   therefore,  constrained  to  hold  that  the judgment rendered by the High Court under appeal, is totally erroneous and  deserves to be set said, We hereby do so. The judgment of  the High  Court of Karnataka dated 11.7.1978 is hereby set  aside and the appeal is allowed. The judgment of the trial  court  is  restored.  Since  this  litigation  is between near  relations, in  the peculiar  circumstances  of this case, we pass no order as to costs.