Topic: H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors
H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors
Equivalent citations: 1959 AIR 443, 1959 SCR Supl. (1) 426 - 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)
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.
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 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,  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.
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
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.
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
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.
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 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 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
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
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
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 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
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 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
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 witnesses, the scribe and the appellant himself have given evidence in support of the will.
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.
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 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
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
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 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
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 the person concerned are made relevant. Section 68 deals with
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
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 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.