TMI Blog1958 (11) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ively 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvivorship 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 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 1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 consequence 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,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 Sadagopalachar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 corroborated 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays 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 (1946) 50 C.W.N. 895. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased (Williams on Executors and Administrators , Vol.1, 13th Ed., P. 93.). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstance 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 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 grandchildren. It is not suggested -that the relations between the testatrix and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (1929) L.R 57 I.A. 96.), 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 (1928) L.R. 56 I.A. 62) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural 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 (1894] P. 151, 157, 159). In Bai Gungabai v. Bhugwandas Valji.( 1905) I.L.R. 29 Bom. 530), the Privy Council had to deal with a will which was admitted to probate by the first court, but on appeal 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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(1935] A.C. 243.). Their Lordships then briefly referred to the evidence led in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructions and so it would be difficult to treat the evidence of this witness as sufficient 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 witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 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 understand 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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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