J.W.F. Beaumont, C.J.
1. This is an appeal from the District Judge of Bijapur, and the petitioner, who is the appellant, was applying for letters of administration with the will annexed in respect of the estate of one Gudadappa who died on October 29,1925, and whose will was made on November 23, 1920. The widow of the testator opposed the will, and she is the respondent on this appeal. There were three issues raised, viz.:-
(1) Is the execution of the will, Exhibit 79, proved ?
(2) If so, was the deceased Gudadappa of a sound disposing mind at the time of execution and
(3) Did he make and execute the will through the undue influence exercised over him by Ningondappa bin Mallappa Jogaredder?
2. The learned Judge answered the first issue in the affirmative, that is to say, he held that the will was executed. He answered the second issue in the negative, that is, that the testator was not of sound disposing mind at the time of execution, and he held that the third issue was unnecessary, although he deals with it shortly in the last paragraph of his reasons. His reasons were given at very considerable length, and he went through the evidence in great detail, and expresses his opinion as to the veracity of most of the witnesses,
3. The relevant facts are these. The testator down to the year 1918, when he was about twenty-three years of age, was living with his mother and his two young sisters. His mother died in October 1918, and some four months later his mother's brother Ningondappa took the testator and his sisters to live with him at Kamdal. The testator had been living with his mother at Tolmatti where the family lands and house were, and he was taken by Ningondappa to Kamdal which was about twelve miles away. There is a suggestion that all the testator's moveable property was also taken at the same time, and that that movable property has not been heard of since, but I do not propose to discuss the evidence as to that, because I do not think the point is of any real consequence in considering the validity of the will. Soon after the testator removed from his house at Tolmatti, his widow, who was a child at that time about twelve of thirteen years of age, and her mother went to live in his house, and they were shortly afterwards turned out of the house by Ningondappa and by the present appellant Mallappa, who lived himself at Tolmatti, and certain criminal proceedings were taken by the testator's mother-in-law against Ningondappa and Mallappa, but these were disposed of in December 1919, and no order in the matter was made. About November 1919 Ningondappa married the testator's elder sister Mallava. She was a child at that time of about twelve years old, and Ningondappa had certainly one if not two other young Avives living at the time, and he has admitted in evidence that he received a dowry amounting to Rs. 200 upon the marriage. On the same day he married his own sister to Mallappa. The next relevant fact, I think, is that the testator's will was made on November 23,1920. He continued apparently to live with Ningondappa, and he probably went some times to Tolmatti to collect rent, but there is no definite evidence as to how often he went. In October 1925 the testator was found drowned in the river. The suggestion is that he had an epileptic fit and fell into the river when he was in that condition. Now the testator's will is in these terms. He says:-
I belong to Tolmatti in Bagalkot Taluka. I sometime get fits of epilepsy, I have got a wife by name Tippawa who is ten or eleven years old and a minor. You being my uncle,' (the will is addressed, I should say, to Mallappa) 'you have been taking proper care of me. I am quite sure that you will continue to take care of me hereafter also. As it is my desire that the property described below should go to you in case I die suddenly, I make this will.' Then follows a description of some lands and a house, and the will proceeds:- You should take all the property shown above (in this way) after my death and enjoy it as owner. And you should go on paying Rs. 60 a year to my wife during her lifetime as her maintenance. As you are my husband and uncle, I have got a desire that my property should go to you. Hence I made this, I myself shall enjoy the above said property during my lifetime only, After my death you should take all my property, and enjoy it as owner as written above. Nobody has any objection to it. Thus is the will made by me of my own free will and when in sound state of mind, dated 23rd November 1920.
Now Mallappa, who is the principal beneficiary under the will and propounds it, married, as I have already stated, about a year before the date of the will the sister of the testator's mother, so that Mallappa was not accurately described as an uncle in the will according to the literal meaning, so I am told, of the word used in the will. He lived at Tolmatti, and there is no evidence whatever that he had in fact been taking care of the testator, as the will states that he had been doing, or that he continued to [ take care or ever intended to take care of the testator after the' date of the will The circumstances in which the will came to be made are quite shortly these. The testator with Mallappa and two attesting witnesses to the will and a gentleman named Bindu went to a pleader named Haveri in Bagalkot for the purpose of getting the will made. Haveri was the lawyer of Nin gondappa, and had no doubt been recommended by him. The will was, I think, drafted by Haveri, and it was then copied out by his clerk Shrinivas, and according to the evidence of the appellant himself, Shrinivas, the pleader's clerk, both the attesting witnesses, and Bindu who was present, the will was in fact read out to the testator before he signed it. It is not disputed on this appeal that the signature on the will is in fact the signature of the testator. On the same day the will was taken by the testator and registered, and Bindu accompanied him to the Registrar's office and identified him before the Registrar.
4. In those circumstances the question is whether that will represented the true last will and testament of the testator, and that involves two sub-questions (1) Was the) testator of sound mind and understanding when he executed the will and (2) Did he in fact understand the will when he executed it Upon the question whether he was of sound mind and understanding, it is quite clear from the evidence that he was a person who suffered from epileptic fits not infrequently, at any rate as often as twice a month, On the other hand it is also clear from the evidence that he was a person of a certain amount of education. He could read and write, and I have no doubt that he was not what we should ordinarily call a lunatic, and I have no doubt also that in his normal state of health when he was not suffering from a fit or the consequences of a fit, he would be mentally quite capable of understanding the particular will which he made. But we are in this difficulty that there is no medical evidence at all. No doubt these people were in poor circumstances, and I do not suppose the testator was in the habit of seeing a doctor, but at the same time it being in evidence that he had suffered not infrequently from epileptic seizures, it would have been possible for the appellant to call medical evidence as to the probable effect of epilepsy on his state of mind. Dealing with the matter as best one may without any evidence, I should say that if a man suffers from epileptic fits, that may not affect his state of mind at certain periods, but on the other hand at other periods it may affect his state of mind and this view is borne out by the evidence, since many witnesses say that the testator was dull witted, whilst others say that he was of normal intelligence. The evidence can be reconciled by supposing that he was sometimes in the one state and sometimes in the other. But I have got no evidence at all as to what his physical condition was at the time when he executed the will. No doubt none of the witnesses who were there suggested that he was at that time suffering from epilepsy, but then I do not know that any of them, except the appellant, was acquainted with the medical history of the man. There is nothing to show that the pleader or his clerk knew that he was in the habit of suffering from epilepsy, and therefore they would not be directing their minds to the question whether he was in a proper state of mind at that time to understand the will, and the same observation applies to the Registrar. Upon the evidence I come to the conclusion that the testator was normally quite capable of understanding the will which he made, but I am not satisfied that at the time he made the will he was in a normal condition. There is no evidence on that question at all, and there is evidence that very frequently he was not in a normal condition The rule that has to be applied has been stated in a good many cases, and it is very clearly stated in the Privy Council decision in Barak Kumari Bibi v. Sakhi Chand in these terms (p. 67):-
The rule in Barry v. Bullin (1838)2 M P.C. 480; Fulton v. Andrew (1875) L.R. 7 H.L. 148 ; Mid Brown v. Fisher (1890) 63 L.T. 465 is not, in my opinion, confined to the single case in which a will is pre. pared by or on the instructions of the person taking largo benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those J who oppose the will to prove fraud or undue influence, or whatever else they I rely on to displace the case made for proving the will.' Per Lindley L.J. in Tyrrell v. Painton  P. 151.
Now it is not disputed here that inasmuch as the appellant was himself present when instructions were given for the will and takes a large benefit under it the burden is upon him to show that the will is the last will and testament of the testator. The passage which I have read from the judgment in the Privy Council case rather raises the question what exactly is meant by circumstances existing which excite the suspicion of the Court. Of course one may be suspicious from the general atmosphere of the whole case, but I do not think that is enough. The case which Mr. Coyajee cited, Bur Singh v. Uttam Singh ILR (1910) Cal. 355 : 13 Bom. L.R. 59., shows that it is not enough that there should be mere motive and opportunity for the exercise of undue influence. You must show something more than that. It is not enough to show in this case that the appellant had a motive and the opportunity for procuring the testator to make a will, which he did not understand and that in fact he benefited by it. I think one must go further than that and say that the evidence discloses circumstances which cause the Court to suspect that this was not the last true will of the testator, and that that evidence has not been displaced by the person upon whom rests the burden of displacing it. Now what are the circumstances of suspicion in this case In the first place, you have got the fact that the testator was undoubtedly a person of rather weak intellect. You have secondly got the fact that about a year before the will he went to live with Ningondappa his maternal uncle, and I think that itself shows or tends to show that he was not a person of normal intellect because he went to live with his maternal uncle twelve miles away from the village where his house and lands were situated. Then you have what we may call the family relationship of Nin-gondappa. A. young man of weak intellect comes to live with him, and soon after, Ningondappa marries his sister and procures a substantial dowry on so doing. You then get the very strong fact which appears in Ningondappa's evidence that at some time probably after the will was made, but certainly before the death of the testator, Ningondappa was borrowing large sums of money from the appellant Mallappa. He says that Mallappa took a deed for the debt, but it is a very obvious possibility, 1 do not suggest it is proved, that Ningondappa, who in the circumstances of the case must have exercised a great deal of influence over the testator, may have induced the testator to make a will in favour of Mallappa on the terms that he should subsequently receive advances from Mallappa in the shape of a loan. That at any rate is a possible explanation of the making of the will. Then we have the very important facts that, as far as I can see, there is no explanation at all of why the testator made a will of this nature, and apart from the evidence as to the reading over of the will at the time when it was made, there is no evidence at all that the testator ever knew what the contents of the will were. There is no evidence that he ever told anybody that he had left his property to Mallappa, and no evidence, apart from the evidence of Ningondappa, certainly no independent evidence, that he told anybody that he was going to leave his property to Mallappa, and we further have in the will itself what appears to me a definite mis-statement as to the reason why he was making a will. He says, ' You (meaning Mallappa) being my uncle have been taking proper care of me, and I am quite sure you will continue to take care of me hereafter also.' It is not the fact, so far as one knows, that Mallappa had been taking care of him, and it is not the fact that Mallappa ever intended or expressed any intention of taking care of him in the future, and one may say that if the testator at the time when the will was made and when it was read over to him (assuming that the evidence as to that is satisfactory, and I am not prepared to say that it is not), and he executed it, had really been in a normal state of health, and considering what he was doing he would probably have objected to that entirely inaccurate statement. It seems to me that statement was rather inspired by Mallappa who has not explained why this will was being made in his favour. The learned Judge saw all the witnesses, and he formed certain conclusions as to them, and of course this Court is reluctant to disagree with him on findings of fact. Upon the whole, giving the matter the best consideration I can, I am not prepared to say that the appellant has removed from my mind the suspicion induced in it by the facts to which I have referred that this will was not in fact the last will of Gudadappa, and that being so, I think the appeal must be dismissed with costs.
5. I agree with my Lord the Chief Justice. The facts of this case have been set out at very great length by the learned District Judge, and they have been argued before this Court in detail for very nearly two days. The essential facts of this case are these. The testator Gudadappa was admittedly a young man who suffered from epileptic fits, and death appears to have been due to his falling into the river and being drowned, in one of these fits. His house and lands were at Tolmatti in the Bagalkot Taluka. The person in whose favour the will is made, the propounder Mallappa, is not really any relation to the testator at all. Although he claims to be a distant bhauband, the Judge has pointed out that he was not able to give the exact relationship between himself and the testator, as he was not able to give the names of the respective great-grandfathers of the parties so as to show how they descended from a common ancestor. During the lifetime of his mother Ningava, the testator lived with her and with his two young sisters Mallava and Bhagava. Ningava died in October 1918, and shortly after that Ningondappa, Exhibit 90, who is the brother of Ningava, came to Tolmatti and removed the testator and the two girls to his own house at Kamdal which is a village in the same sub-division about twelve miles from Tolmatti. Now it has been argued by the learned Counsel for the appellant that the evidence shows that after the death of Ningava, after he attained majority, the property was managed by the testator, and it is a fact that there are on record leases passed to him, rent-notes passed to him, receipts for rent signed by him, that he instituted a madat suit against one of his tenants, and that he received certain payments before the death of his mother from a pleader in Bagalkot, Mr. Datar, in connection with the suit which had been filed by Ningava. It also appears from the will itself and from these documents that he was in a position to sign his name-his signatures are fairly good ones-and that he had reached the fifth standard in the school. It is, however, apparent from the facts of this case, which are set out in the judgment of the learned District Judge, that he was not considered a fit person to live by himself after the death of his mother. The suggestion that he was taken by his maternal uncle Ningondappa to his village because there was nobody to cook for him in his own house is disproved by the fact that Ningondappa's own wife was no older than the sisters of Gudadappa. Now from the date of his going to Kamdal to live with his uncle he had no further occasion to come to Tolrnatti except to collect rent, and the evidence of the witnesses is that they paid the rent to him at Kamdal. Mallappa the propounder, in whose favour the will is made, is an inhabitant of Tolmatti, and he has now married the sister of Ningava, and is therefore an uncle by marriage of the testator. The will itself commences with a misstatement of fact, saying that Mallappa is his uncle and has taken care of him, and will take care of him for the future. As pointed out by the learned District Judge, Mallappa was not the uncle of the testator although recently he may have become his uncle by marriage by reason of his marriage with the sister of Ningava. The statement that he has been taking care of the testator is entirely untrue. There is no evidence whatever that he had taken care of the testator, while he was living in Tolmatti. As a matter of fact the testator's mother was then alive, and was naturally the person to take care of him. At the time when the will was made the testator was living with Ningondappa his maternal uncle, at Kamdal, and therefore there was no necessity and no possibility of Mallappa taking care of him. Moreover, the occurrence of such a statement as this in a will must necessarily, in my opinion, throw a doubt upon the testamentary capacity of the executant, Gudadappa was born in the year 1893, and at the date of this will, which is 1920, he was about twenty-six or twenty-seven years of age. Also, as has been pointed out by the learned Counsel for the appellant, he was a person who had been letting his lands to tenants, recovering rent from them, and doing the ordinary business which an agriculturist in the mofussil does. Why should such a person require anybody to take care of him The only people who require taking care of are infants, lunatics, and infirm and aged people, and the use of this expression seems to show that the testator was not a person who is really capable of looking alter himself. Now there is another circumstance which, to my mind, throws a very great deal of suspicion on the whole of this transaction, and it is this. Ningondappa, his maternal uncle, was a man in debt. He owed debts to others and also to Mallappa. He has admitted that after the date of this will Mallappa the propounder undertook the responsibility of his debts, as a result of which he became indebted to Mallappa in a large sum, over Rs. 8,000, and the suspicion to which this gives rise is this. No evidence has been given as to what was the security for this debt of Ningondappa to Mallappa, and this suggests to my mind that the security in consideration of which Mallappa undertook the heavy responsibility of paying a large sum to the creditors of Ningondappa was the property of the nephew of Ningondappa who was living with him. Any feeling of gratitude felt by the testator would be towards Ningondappa in whose house he was living, not Mallappa, but we find that in the will the expressions of gratitude which the testator expresses are towards Mallappa and not towards Ningondappa, and this supports the theory of the learned District Judge that the shadow of these two persons hangs over everything done by the testator. Now supposing the will had been made in favour of Ningondappa it would have been very easy to attack it on the ground that the testator, who was a person below the average in intelligence, was living in the house of Ningondappa who was his mother's brother, and further, was married to his sister Mallava, and the will would have been open to serious objection on that ground. But in the present circumstances that ground is cut from under the feet of the respondent, because the connection between Mallappa the propounder and Gudadappa the testator is extremely remote, and the attempt to make out a connection between them, as I have already pointed out, in the will, is clearly a myth, because there was no occasion for Mallappa to take care of the testator who has been taken care of by Ningondappa. The only suggestion which has been made by the learned Counsel for the appellant, who has ably put forward every possible ground in support of his client's case, is that when the testator went to Tolmatti to recover his rent he used to stay with Mallappa. Beyond a vague statement of Ningondappa and Mallappa, there is no evidence of that, and as has been pointed out by the learned Counsel for the respondent, the statements of the witnesses who paid rent to the testator lead to the conclusion that payment was made at Kamdal, and therefore there would be no occasion for the testator to go to Tolmatti where his lands were let for long periods to substantial tenants. All this gives rise to the suspicion that there was an arrangement between Ningondappa and Mallappa that in consideration of the advances made by Mallappa to Ningondappa, Ningondappa should induce his nephew to make a will in favour of Mallappa, and I have little doubt that this is what has taken place. No doubt, as the Privy Council have frequently laid down, mere suspicion is not sufficient, but in this case we have a will put forward by the propounder who himself took a prominent part in the making of that will. He is the person who took the testator to the pleader in Bagalkot, and from the evidence which has been led on that particular point it seems doubtful whether the instructions came from the testator himself or from those who accompanied him, viz., Mallappa and Bindu the Kulkarni at Tolmatti, and a further point to be noticed is that Ningondappa, who is the person with whom the testator was living, and who, so far as appears from the genealogy put in, was his nearest living relative, does not accompany the testator to Bagalkot, and this further strengthens my suspicion that the object was to keep Ningondappa in the background in order that there might be no suggestion thereafter that it was under undue influence exercised by him that the testator was induced to make a will in favour of either him or Mallappa. In these circumstances the facts of this case appear to me to raise considerable suspicion. It has very recently been held by the Privy Council in Vella-sawmy Servai v. Sivaraman Servai (1929) L.R. 57 IndAp 96 : 32 Bom. L.R. 511 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. The whole circumstances under which this will came to be made appear to me to be such as must raise the greatest suspicion in the mind of any Court. It is not the practice of agriculturists, at any rate as far as I know of people of this country in general in the mofussil, to make their wills unless they are seriously ill. Gudadappa was a young man. Although he suffered from fits, there was no reason why a person suffering from epileptic fits should not live to the normal age. The terms of this will read as if Gudadappa foresaw that he must lose his life while in one of these fits. I do not think that the learned District Judge was wrong in holding that the will propounded is not the act of Gudadappa in the sense that it expressed his mind. I do not think that he really appreciated the effect of what he was doing when he made this will by which his property was transferred from his wife who was his heir, to a very distant person who can hardly be called bhauband at all, and who, so far as the evidence shows, had rendered him no service whatever which could justify the will in his favour.
6. In these circumstances I agree that the decree of the lower Court should be confirmed, and the appeal should be dismissed with costs.