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Bapuji Nusserwanji Vatchaghandy and anr. Vs. Sorabji Ardeshir Vatchaghandy - Court Judgment

LegalCrystal Citation
Decided On
Reported in7Ind.Cas.301
AppellantBapuji Nusserwanji Vatchaghandy and anr.
RespondentSorabji Ardeshir Vatchaghandy
will - capacity to make a will--undue influence--burden of proof--evidence, nature of--pleadings --particulars of undue influence--evidence in rebuttal--costs. - - i have assumed that the instructions given by sorabji to his counsel must have been extremely venomous because rustomji was treated in the manner i have stated above by a member of the bar, who is pre-eminently distinguished for his extreme fairness to his opponents and whose advocacy is not only always distinguished by conspicuous reticence in cases where bad feelings between litigating parties exist but has often been distinguished by very generous treatment of those against whom he appears. 17. before i enter upon a discussion of the evidence in the case, i think it will conduce to a better understanding of what follows,.....davar, j.1. the plaintiffs in this suit, bapuji nasserwanji vatchaghandy and his brother rustomji nasserwanji vatchaghandy, apply for probate of a will made on the 16th of december 1895 by their maternal aunt bai jaiji, daughter of maneckji sorabji vatchaghandy and the younger sister of their mother bai meherbai. jaiji died on the 30th may 1909. the will is written out by mr. keykhusru sorabji engineer, a retired government officer, who served government in various capacities for many years and eventually was invalidated and retired on pension in 1895. the will is admittedly signed by jaiji in her own handwriting and is attested by the writer of the will, dr. engineer and colonel boyd, a justice of the peace and a member of the indian medical service who was connected with bombay for many.....

Davar, J.

1. The plaintiffs in this suit, Bapuji Nasserwanji Vatchaghandy and his brother Rustomji Nasserwanji Vatchaghandy, apply for Probate of a Will made on the 16th of December 1895 by their maternal aunt Bai Jaiji, daughter of Maneckji Sorabji Vatchaghandy and the younger sister of their mother Bai Meherbai. Jaiji died on the 30th May 1909. The Will is written out by Mr. Keykhusru Sorabji Engineer, a retired Government Officer, who served Government in various capacities for many years and eventually was invalidated and retired on pension in 1895. The Will is admittedly signed by Jaiji in her own handwriting and is attested by the writer of the Will, Dr. Engineer and Colonel Boyd, a Justice of the Peace and a Member of the Indian Medical Service who was connected with Bombay for many years.

2. Against their petition for probate, the defendant Sorabji Ardesar Vatchaghandy has filed a caveat. Sorabji is the son of a brother of Jaiji and Meherbai. In his affidavit in support of the caveat he says that he would be entitled to 2/3rds of the estate of Jaiji if Jaiji had died intestate. He states that the writing propounded by the plaintiffs as the last Will and testament of Jaiji is not her Will, that Jaiji was not, 'at the time the said alleged Will purports to have been made or at any other time, of sound disposing mind, memory and understanding'. He further urges that Jaiji did not execute the said Will of her own free-will and pleasure but that the execution of the said alleged Will was obtained by the undue influence of the plaintiffs and their mother, Bai Meherbai.

3. The plaintiffs in the Schedule annexed to their petition show that the only property left by Jaiji is of the value of Rs. 5,415. From this they deduct Rs. 5,000, which is the sum directed in the Will to be spent for the funeral and obsequial ceremonies attendant on the death of the testatrix. The only estate, therefore, available for distribution or administration is of the value of Rs. 415.

4. The defendant in his affidavit in support of the caveat says that Jaiji was known to own and possess property worth over a lac of rupees.

5. At the hearing Mr. Lowndes, who appeared for the defendant, raised only three issues. First, whether the Will propounded is the last Will of the deceased Second, whether at the date of the Will propounded the deceased was of sound and disposing mind And third, whether the execution of the alleged Will was brought about by the undue influence of plaintiff Rustomji and his mother Meherbai or either of them. The trial of these apparently very simple issues has occupied much time and taken many hearings. Throughout the whole of the hearing, if there was one thing that was quite clear, it was that the defendant bore very considerable ill-feeling towards his aunt Meherbai and her children. It will be noticed that although in his affidavit he attributes the exercise of undue influence to both the petitioner, in the issues Bapuji is dropped and only Rustomji is retained. Towards Rustomji, Sorabji seems to entertain extremely bitter feelings and the instructions given to his counsel with reference to Rustomji must have been so venomous that the learned counsel who conducted his case in the beginning admitted, when addressing the Court, that he could not refer to Rustomji with any degree of patience. Throughout the whole time the evidence on behalf of the plaintiffs was being recorded, and in the course of many discussions that ensued, Rustomji was referred to by the learned counsel for the defendant in the most opprobrious terms and many charges of dishonesty were levelled against him. He was said to have cheated Jaiji, a hopeless imbecile, of the whole of her fortune, and misappropriated the same to his own uses. And it was stated without any reserve that Rustomji, while carrying out his nefarious purposes of swindling his imbecile aunt, had not stopped short of committing the offence of forgery. I have assumed that the instructions given by Sorabji to his counsel must have been extremely venomous because Rustomji was treated in the manner I have stated above by a member of the Bar, who is pre-eminently distinguished for his extreme fairness to his opponents and whose advocacy is not only always distinguished by conspicuous reticence in cases where bad feelings between litigating parties exist but has often been distinguished by very generous treatment of those against whom he appears. It was a matter, therefore, of extreme regret to me that he was not in this country to see the end of this case. Unfortunately this case had to stand over after the 5th of March, as I was sitting on the appellate side for some time after that date. The hearing was resumed on the 7th of April and was not concluded when the Court was closed for the summer vacation. The defendant lost the benefit of Mr. Lowndes' advocacy after the re-opening of the Court but I had the satisfaction of hearing him opening the case for the defendant and it is a source of great regret to me that he was not here to see how much the evidence led on behalf of the defendant fell short of the evidence which he said would be placed before the Court on behalf of his client.

6. The defendant based his opposition to the Will on two grounds. First of all, he contended that Jaiji was an imbecile from her birth, that she never was at any time capable of managing her own property or her own affairs, that she was a congenital idiot and that at no time of her life had she any capacity to make a Will.

7. His second ground was that Jaiji was under the absolute control, almost thraldom, of her elder sister Meherbai and her son Rustomji, that she had no Will of her own, that the Will propounded did not contain her own wishes, desires or directions and that it was obtained by the undue influence exercised over Jaiji by Meherbai and her son Rustomji.

8. In support of his ground of opposition, it was suggested in the cross-examination of the plaintiffs' witnesses and alleged in the evidence, which was led on his own behalf, that Jaiji had a small conical head, a receding forehead amounting to almost no forehead, that she was clumsy and slipshod in her dress, that she was violent in her behaviour towards her father Maneckji, whose life was in consequence of her conduct a burden to him, that she had the face of an imbecile, that she had thick lips, that the lower lip protruded, that saliva always dribbled out of her mouth on to her clothes, that when she attempted to eat, portions of the food fell out of her month, that she was given to raving and muttering to herself and making gestures at passers-by, that she was subject to various hallucinations and that she remained unmarried all her life because she was' a congenital idiot and was known through her life as Jai Ghelli (Jai mad or insane). It was further alleged that she indulged largely in alcohol, opium and morphia.

9. In support of his second contention, the defendant alleged that Meherbai and her children had taken complete possession of Jaiji, that she was absolutely under Meherbai's control and was afraid of her, that Meherbai and members of her family did everything for her in the way of management of her property and that she was all times wholly incapable of exercising any will of her own independently of Meherbai and her family.

10. The defendant's affidavit in support of his caveat was affirmed and filed on the 16th of October 1909. It will be noticed that the allegations in that affidavit are general and no particulars of any kind are mentioned in that affidavit.

11. The plaintiffs' Solicitors, by their letter of the 21st October 1909, called upon the defendant's Solicitors to furnish particulars of the undue influence charged by the defendant. As no reply was vouchsafed to this letter, they wrote again on the 30th October, renewing their demand for particulars as to undue influence and further calling upon the defendant's Solicitors to give a substance of the case on which the defendant intended to rely in support of his contention that Jaiji was not of sound mind, memory and understanding and to give specific instances of delusions if any that were intended to be relied upon by him. The defendant's Solicitors on the 1st of November very curtly refused to comply with the demand, stating that their client was under no obligation to furnish either the particulars required or to state the substance of his case. On the defendant declining to eomply with the plaintiffs' demand, a Chamber summons was obtained on the 24th November, calling upon the defendant to show cause why he should not give particulars with dates and items of the undue influence charged by him in his affidavit and why he should not give the substance of his case on which he intends to rely by giving specific instances of delusions, if any, that were intended to be relied upon. That summons was resisted by the defendant and the larned Judge in Chambers, after hearing counsel, dismissed the same. See Exts. A 5, A 6 and A 7. It was stated to me that 'the summons was dismissed on the technical ground that the affidavit in support of the caveat was not included within the meaning of the word 'pleading.' This attitude of the defendant seems to me to be very unfortunate. It is true that on the authority of Salsbury v. Nugent 9 P.D. 23 : 53 L.J.P. 23 : 50 L.T. 160 :32 W.R. 221, particulars of acts of undue influence or of the time and places where and when they took place, will not be ordered. But the practice with reference to probate actions, where it is pleaded that the testator was not of sound mind, memory and understanding, is crystallised in English Rule 25 (a), Order XIX, which runs as follows:

Order XIX, Rule 25(a). In probate actions it shall be stated with regard to every defence which is pleaded, what is the substance of the case on which it is intended to rely and further where it is pleaded that the testator was not of sound mind, memory and understanding, particulars of any specific instance of delusion shall be delivered before the case is set down for trial and except by leave of a Court or a Judge, no evidence shall be given of any other instances at the trial.

12. The summons, however, having been dismissed, the defendant was not confined to any case defined by him before the hearing with the result that as the evidence progressed, his case showed signs of considerable improvement. This attitude on the defendant's part furnished an excuse, I think, with some justification, to the learned counsel who appeared for the plaintiffs, for not calling the second plaintiff Rustomji before he closed his case. He very rightly contended that he did not know what the defendant's case was, with respect to undue influence and that, therefore, he did not at that stage know what case he had to meet and reserved his client's evidence to be by him given in rebuttal if necessary. I warned him then that I was not sure that I would allow him to call evidence in rebuttal and in all probability if Mr. Coyaji had not consented and asked that Rustomji should be called so as to enable him to cross-examine him when Mr. Bahadurji applied to call him at the end of the defendant's case, I should have refused permission to allow that evidence to be given.

13. That brings me to the question on whom the onus of proving the issues in this case lay. It is quite clear that the onus of proving that the Will propounded is the last Will of the deceased and that the deceased, when he or she made that Will, was of sound and disposing mind, memory and understanding, always lies on parties who propound the Will and those interested in the estate of the testator or testatrix are at all times entitled to call upon the propounders of the Will to prove the execution of the Will and the testamentary capacity of the party making it. Where, however, undue influence is alleged, ordinarily the onus of proving that the Will was obtained by the undue influence of other parties, lies on those who make the allegation. There are, however, very clear authorities which show that under certain circumstances it would be incumbent on those who propound the Will to establish affirmatively that the document put forward by them contains the true desires, wishes and directions of the party executing it, that the document was prepared under his or her instructions and thoroughly understood by him or her before it was executed as his or her last Will and testament and that the execution of such document was not obtained by fraud, coercion, misrepresentation or undue pressure but was the result of the testator or testatrix's free and unfettered Will.

14. In this case Jaiji was an unmarried lady, living by herself and admittedly in very close touch with the family of the plaintiffs. And quite apart from the rival allegations of the parties, it was quite clear that Jaiji was not a lady of much education or very high order of intelligence. I am, therefore, of opinion that in this case the onus of establishing both the propositions that Jaiji was possessed of testamentary capacity and that the Will was made by her without being unduly influenced by any one, lies wholly on the plaintiffs. And I propose to examine both the voluminous oral evidence and the documentary evidence recorded in this case, on the basis that the plaintiffs must, before they are held entitled to the probate of the Will they propound affirmatively establish that the document propounded is the last Will and testament of Jaiji, that when it was made Jaiji was of sound and disposing mind, memory and understanding and that the Will was obtained without the exercise of undue influence and contains her own wishes and directions and was the result of her free and unfettered Will.

15. I propose to discuss the oral and the documentary evidence separately and, while discussing the oral evidence, to refer to only such documents as are connected with that oral evidence, leaving the other documents to be noticed and discussed separately.

16. Since the hearing of this suit came to a termination, I have carefully read over the whole of the oral evidence recorded in. the case and studied the documents. And my acknowledgments are due to Mr. Coyaji, the learned counsel who appeared for the defendant at the later stage of the suit, for the very full, careful and exhaustive analysis and criticism of the evidence, bath documentary and oral, which he presented to me in the course of his find address. That address was distinguished by a tone of studied moderation and discretion which took nothing away from its forensic advocacy of every point that could possibly be urged in favour of the defendant's case. Every doubt and difficulty I felt against his case I put to him and Mr. Coyaji with the most exemplary patience and courtesy tried to meet every one of those points with the result that it gave him an opportunity of answering every thing that was passing in my mind, as he took up point after point arising in the case.

17. Before I enter upon a discussion of the evidence in the case, I think it will conduce to a better understanding of what follows, if I set out a few facts which, are not in dispute. The testatrix's grandfather Sorabji died in August 1857 having made his Will previous thereto on the 16th of July 1856. He left three sous, Khursedji, Rustomji and Maneckji. We are concerned in this suit with Maneckji's branch. Maneckji was married to a lady of the name of Hamabai, who died on the 17th of August 1859, having made her Will on the 28th of February 1859. Maneckji had three children by Hamabai, two daughters. Meherbai and Jaiji and a son named Ardeshir. Meherbai was married to a grandson of Rustomji, the brother of Maneckji. Meherbai had four sons and three daughters; the plaintiffs are two of such sons. Ardeshir married a lady of the name of Dinbai and had one son named Sorabji. Jaiji was born in or about the year 1844. She died on the 30th May 1909, having remained the whole of her life unmarried. Jaiji's father Maneckji died in August 1887 having made his Will on the 3rd of May 1886. The defendant's father Ardeshir died in May 1892 and Meherbai died in November 1907.

18. Jaiji, the testatrix, during her life-time was possessed of considerable property. Her grandfather Sorabji in his Will provided a sum of Rs. 2,000 for her marriage. Of this sum she never got any benefit because she was not married. Her mother Hamabai by her Will bequeathed to her absolutely a 1/4th share in a very valuable property situated near Jumma Masjid which was sold on the 24th September 1906 for the sum of two lacs of rupees. See Exhibit A19. Under her father's Will she got absolutely Government Promissory Loan Notes of the face value of Rs. 26,000 and eight shares in Treacher & Company, Limited. Besides the absolute gift of the Government Paper and Treacher's shares, Jaiji s father gave her the use of a certain portion of the old family house at Modykhana for her life and gave her life-interest in a house in the Fort known as Dr. Concessio's house. The rent of that house was approximately Rs. 110 a month and this Jaiji enjoyed from the time of her father's death to that of her own, Maneckji also gave her life-interest in a bungalow at Napean Sea Road and the use of a gardener's hut in the vicinity of that bungalow. Besides these, he directed that Rs. 6,000 Government Paper should be set aside and the interest accruing due thereon given to Jaiji for life. He also directed a payment of Rs. 20 to her per month for life and of Rs. 100 a year also for life for her clothing. Jaiji was in possession of the whole of these properties upto anyhow the year 1893. The only properties over which she had a power of disposal was her 1/4th share in the Jumma Masjid Ohawal, Government Promissory Notes of the face value of Rs. 26,000 and 8 Treacher's shares.

19. It is admitted by Rustomji that Jaiji made over to him the whole of her Government paper of the value approximately of Rs. 26,000 somewhere about the year 1894, shortly before the date of the Will propounded. In June 1895 Jaiji transferred her 8 shares in Treacher and Co. to her sister Meberbai. In 1906 she received a cheque for Rs. 47,500 being her share of the sale proceeds of the Jumma Masjid property. This sum she also made over to her sister Meherbai. Later on I will discuss the circumstances under which Jaiji parted with these properties. At present it is sufficient to state the facts as they occur. On Jaiji's death, all the properties in which she had a life-interest went to the defendant Sorabji.

20. I will now turn to the Will propounded by the plaintiffs before proceeding to discuss the evidence in the case and its effect. The Will executed by Jaiji, Exhibit 13, is written in the Gujarati language and the phraseology used in the Will is of the simplest possible description. The provisions again are not in the least complicated or difficult to conceive or enunciate. The testatrix begins saying that she is making her last Will. By the first clause she appoints the plaintiffs, two of the sons of her sister Meherbai, the executors of her Will and she directs them to pay her debts and recover whatever may be due to her. Clause 2 directs that Rs. 5,000 should be expended for her funeral and obsequial ceremonies. Clause 3 directs that 5 legacies therein set out should be paid 6 months after her death, a legacy of Rs. 500 and a bequest of her diamond ring to the plaintiff Rustomji, a legacy of Rs. 51 to her old servant Govind, a legacy of Rs. 101 to her old friend and medical adviser, Dr. D'Souza and nominal legacies of Rs. 15 each to the defendant and his mother. By Clause 4 of her Will she gives all her jewels and trinkets to her sister Meherbai. Clause 5 provides that her sister Meherbai should have a life-interest in the residue of her property and that after her death the same should be equally divided between all Meherbai's children. She then signs the Will which, as I have observed above, is attested by Colonel Boyd and Dr. Engineer.

21. In this case two really very simple questions arise. First whether Jaiji was such an hopeless imbecile as to be in law incapable of making a Will. Secondly, whether, if she had sufficient intelligence to entitle her to make a Will, the Will that she has made was obtained by Meherbai and Rustomji, by the exercise of what in law is known as undue influence.

22. The oral evidence that was tendered and which has been recorded is voluminous but the appreciation of it presents no difficulty whatever and the documentary evidence that is recorded in the case is absolutely conclusive and leaves no doubt whatever as to what the judgment of the Court should be. As the parties have been to the trouble and expense of calling a large body of witnesses and examining them before me, I think it is but fair that I should examine and discuss that evidence with a certain amount of fulness.

[After discussing the oral evidence produced his Lordship proceeded.]

23. The plaintiff Rustomji was permitted to give evidence at the end of the case under circumstances which I have explained in the earlier portion of my judgment. It gave him certain advantages which I was unwilling that he should have. His not coming into the witness box before his case was closed, is liable to the remark that it was intended to escape being cross-examined by Mr. Lowndes, who, it was known, was soon leaving the country. His coming in at the end of the case gave him an opportunity of carefully noting all that was said and done in the case and then replying to everything that needed a reply. This result is partly due to the standoffish action of the defendant's legal advisers, who strenuously resisted giving any particulars of their case, thereby giving the plaintiffs an opportunity of pretending that they had a grievance. However the fact remains that Rustomji was permitted to give his evidence and his evidence is only important in that he has been able to meet, and, I think successfully refute, the many charges of personal dishonesty, &c.;, made against him. On the main issues involving in the case, my decision would be the same whether Rustomji had given his evidence or abstained from doing so and whether I take his evidence into consideration or entirely ignore it. It is true that he and Dr. Engineer are the only two living witnesses who were present when the Will was made but I think nothing turns on the making of the Will itself. It is not disputed that the Will bears Jaiji's signature and it cannot be pretended that Rustomji exercised undue influence on that occasion when the Will was actually executed and when the two Doctors Colonel Boyd and Dr. Engineer were present. So that the decision of the issues in the case does not depend on what took place on the 16th of December 1895 when Jaiji executed the Will, and Rustomji's evidence is not very material, so far as the events of that day are concerned. I think it is only fair to him that I should say that he has been in this case most unjustly treated by the defendant's side. It was over and over again urged that Rustomji had swindled Jaiji and misappropriated the whole of her property. That turns out to be untrue. The only property of Jaiji that went into his pocket was Government paper of the value of Rs. 26,000. The insurance moneys that he seems to have recovered on behalf of Jaiji were appropriated towards building shops on the site and the balance was handed over to Jaiji. The only other pecuniary benefit he derived in dealing with Jaiji's property was the acquisition of Rs. 2,500 when he negotiated the sale of the Jumma Masjid property. His partner Ardeshir contractor seems to have been in impecuneous circumstances and indebted to him to the extent of Rs. 2,500 about this time. Rustomji got his name inserted as a broker and got a cheque for Rs. 3,500 made out in the name of Ardeshir Contractor. He paid himself Rs. 2,500 which was due to him on Ardeshir's hundi, Exhibit A14, and gave Ardeshir only a thousand rupees. Ardeshir denies the receipt of these thousand rupees but I distrust that denial. He is a man utterly unworthy of credit, and on his own admission made in a writing passed by him to Rustomji he was guilty of misappropriating a large sum of money while he was Rustomji's partner. Beyond deriving an advantage of having a debt of Rs. 2,500 from a doubtful debtor realized by him, there is nothing to show that Rustomji was guilty of any misconduct in the sale of the Jumma Musjid property.

24. A very great deal has been said about Rustomji obtaining Government paper from Jaiji. Let us consider the circumstances which existed at the time Jaiji gave that paper to Rustomji. Jaiji's needs were extremely small. She had a bungalow rent free to live in. She was receiving Rs. 100 a year for her clothes, interest on Rs. 6,000 and Rs. 20 a month under her father's Will. She was also receiving the rent amounting to Rs. 110 a month of Dr. Concessio's house in which she had a life-interest also under her father's Will. She was also in receipt of a 1/4th rent of a large building in which she had inherited a 1/4th share under her mother's Will. Having regard to the fact that that building was sold for two lacs of rupees, her share of the rent must have been a very handsome sum of money. She had nobody to provide for except herself. It is proved beyond doubt that she entertained great affection for Meherbai and her children. Mr. No-wroji Gamadia says she always spoke of them as her own children. Of those children, Rustomji seems to have been a favourite of hers. Independently of the interest on Government paper, Jaiji had a great deal more money than she required for her comfortable maintenance and under these circumstances if she did make a present of this paper, to help Rustomji in his business, it does not seem to me to be by any means a very extraordinary transaction. There is no evidence before me to show that Rustomji resorted to any dishonest means or doubtful tactics in order to obtain possession of this money. It was further alleged that the 8 Treacher's shares which Jaiji inherited under her father's Will also went into Rustomji's pocket. This is shown to be incorrect. Jaiji seems to have transferred those shares to Meherbai and not to Rustomji and they form part of Meherbai's estate and they are said to be still in the possession of Meherbai's Executors. Under Meherbai's Will Rustomji gets no benefit. Then again, it was urged that Jaiji's share of the sale proceeds of the Jumma Masjid property amounting to Rs. 47,500 also went into Rustomji's pocket. This proved to be untrue. No doubt the cheque in Jaiji's favour in the first instance went into Rustomji's Banking Account together with Meherbai's cheque for a like amount. But Exhibit A18 shows that the whole Rs. 95,000 were paid out by Rustomji very soon after they were paid into his account by three cheques dated the 9th of October 1903; 10th of October 1906 and the 10th November 1903, Rs. 92,000 were paid by the first two cheques to Meherbai's broker for the purpose of buying shares in Joint Stock Companies and a month later the balance of Rs. 3,000 was paid to Meherbai herself by a third cheque, so that no portion of Jaiji's share of the sale proceeds of the Jumma Masjid property has gone into Rustomji's pocket. Rustomji says, Jaiji made over this sum to Meherbai under an arrangement whereby Meherbai undertook to pay Jaiji Rs. 225 for life. This arrangement may or may not have taken place between the sisters. This Court is not concerned with what took place between Meherbai and Jaiji with respect to Jaiji's property, except incidentally on the question of undue influence said to have been exercised by Meherbai over Jaiji which I shall presently discuss. It seems to me that the charges against the plaintiff Rustomji were most recklessly made and he has met them in a manner which to my mind is satisfactory.

25. This is practically all the oral evidence in the case, except some formal evidence which I think it unnecessary to discuss.

26. I will now turn to the documentary evidence that has been recorded; some of those documents, such as the power of Attorney, the draft, endorsement in Jaiji's handwriting on that draft and sets of correspondence carried on by Mr. Neemuohwalla on Jaiji's behalf, I have already referred to. The other documents all speak for themselves and their contents lead to inferences so obvious that I do not think it necessary to discuss them at any great length. I will refer to them as shortly as possible.

27. Exhibit No. 3 are two books produced by the plaintiffs and put in by the defendant. They contain accounts in respect of the Jumma Musjid property and they contain numerous signatures made by Jaiji at the foot of those accounts. From this it is quite clear that at a time when there was no question as to whether Jaiji was sane or insane, imbecile or intelligent, Jaiji was treated as an ordinary sharer with sufficient intelligence to understand accounts and to sign them.

28. Exhibit V is the Will of Jaiji's grandfather Sorabji made in 1857 when Jaiji was about 11 or 12 years of age. At the very threshold of that Will he says: 'My son Maneckji's one son Ardeshir and one daughter Jaiji are to be married' and he provides a sum of Rs. 2,500 to be expended on the occasion of Jaiji's marriage. Is it likely that if Jaiji was born an idiot, carrying all the marks of imbecility on her face, that her grandfather should have failed to observe them till she grew to the age of 12 years and contemplated the possibility of her marriage and made provision for the same?

29. Exhibit W is the Will of Jaiji's mother, Hamabai, made in 1859 when Jaiji was about 15 years of age. She also contemplates Jaiji's marriage, for in Clause 4 of her Will she provides that a sum of Rs. 1,000 should be expended on the occasion of Jaiji's marriage in providing clothes, presents, etc. Did her mother never realize, even when Jaiji was as old as 15 years, that she was a congenital idiot or did she contemplate the marriage of this congenital idiot in spite of her conical head and absent forehead, thick lips and dribbling mouth? She deliberately refers again in the following clause to the expenditure to be incurred on Bai Jaiji's marriage, and then goes on to devise all the residue of her property in equal shares to her two daughters, Meherbai and Jaiji, without any distinction between either of them. Is the mother likely to have made such a Will without any safeguard to protect Jaiji's share, if she knew that Jaiji was born an imbecile and was incapable of managing her property and her affairs? She had a half share in a valuable property, that half share she bequeathes to her two daughters without distinction and there is not the faintest trace or indication in the Will of any consciousness on her part that Jaiji was not capable of taking care of inheritance which she was leaving her.

30. Exhibit X is the Will of Jaiji's father Maneckji. According to the defendant's case Jaiji abused and beat her father, tore his clothes and led him such a life generally that it was a burden to him and that he often deplored his fate to some of the defendanst' witnesses, It is interesting to see, therefore, how he treated this terrible child of his under his Will. Maneckji made his Will in 1886 when Jaiji was about 42 years of age. By Clause 5 of his Will ho directs, amongst other things, that Government promissory-notes of the nominal value of Rs. 26,000, the numbers of which ho specifies, should be made over to his daughter Jaiji aslegacy six months after his death. In the same clause he providos that his second daughter Jaiji. should have an allowance of Rs. 20 per month during her life for her private expenses and in addition to the said allowance he directs that a sum of Rs. 6,000 be invested in Government paper and the interest thereof be paid to Jaiji during the term of her life. In Clause 6 of Lis Will, he gives to Jaiji the use for life of certain portions of the family house. By Clause 7 of that Will, he directs that a bungalow at Napean Sea Road ''shall exclusively be used by my daughter Jaiji as and for her residence or let by her for her exclusive use and benefit during her life-time,' such use and occupation is free from payment of all Municipal and Government taxes and all repairing charges. The last portion of the paragraph of this clause relating to. the bequest of this house is extremely instructive. Maneckji says: Should, however, my daughter Jaiji at any time desire not to keep the said property in her charge and possession and expresses so in writing to my said son Ardeshir and hands over the property to him, he will thereafter treat it as his own absolute property and will pay in lieu thereof to the said Bai Jaiji Rs. 100 monthly during her life-time.' Clause 8 of the Will gives to Bai Jaiji life-interest in the Fort house known as Dr. Concessio's house 'to be let or used by the said Bai Jaiji during her life-time in any manner or way she may please.' The 9th clause directs a payment of Rs. 100 a year to Jaiji during her life for her clothing and contains an absolute bequest of 8 shares in Treacher & Co. After giving her further the use during life of Shiva Mali's hut and bequeathing to her carriage, horse, harness and furniture, the testator declares in the 12 clause of his Will that the legacies given to his daughter Jaiji 'shall, if she marry, be independently of the control of her husband.' A careful study of the provisions of this will lead one to come to the conclusion that Maneckji must have through life borne great affectionf or this particular child of his and have treated her with great liberality in his Will. Evidently he realized that Jaiji had reached an age when marriage in her case was remote contigency, so that besides making absolute gift of the Government paper and Treacher's shares, he gave her only life-interest in properties, thereby providing for a large and comfortable income to her during her life; Surely, if any man was in a position to judge whether Jaiji was or was not capable of taking care of and managing her own property; that man was her father Maneckji. He makes absolute gift of securities of large value to this daughter of his, without in the least hampering her use and control over the same. Is he likely to have done this if Jaiji was anything like what the defendant now tries to make her out? The provision in the Will as to Jaiji giving her consent and expressing the same in writing proves that Maneckji knew that Jaiji could write and the choice given to her of their accepting residence and occupation in the Napean Sea Road house or in the alternative receiving Rs. 100 a month shows that Maneckji knew that his daughter was capable of making intelligent election.

31. The defendant's father as one of the Executors of his father Maneckji's Will, carried out all the provisions thereof and one of his acts as such executor was to endorse over in his own handwriting and under his own signature in his capacity as such executor Government paper of the nominal value of Rs. 26,000. Exhibits Nos. 15 A, 15 B, and 15 H are three of such pieces of the value of Rs. 22,000 which are actually before the Court and bear Ardeshir's endorsements in favour of Jaiji's. What can be more eloquent or powerful testimony of Jaiji's ability to handle property and manage it for herself than this act of the defendant's own father transferring valuable security to Jaiji without any demur on his part. In the same way he seems to have transferred to Jaiji 8 shares of Treacher & Co. as directed under Maneckji's Will? Is it possible to conceive that Maneckji could have made these bequests and Ardeshir would have carried them out if Jaiji was incapable of understanding anything whatever of the value of property and incapable of managing the same?

32. Exhibit A11 is a receipt given in 1874 by Meherbai and by Jaiji to their father Maneckji, wherein they acknowledge that they had received all they were entitled to under their mother's Will from their father who was the executor named therein. This receipt is attested by Shamrao Pandurang, the family Solicitor and is followed by a formal release by the same ladies to their father three years later. This release is Ext. A12 and recites that the ladies have examined the accounts kept by Maneckji and have certified to the correctness of the same by their signature at the foot. This release, before execution, is interpreted to the ladies by a Court interpreter and attested by Shamrao Pandurang. In both these documents no distinction whatever is made between Jaiji and Meherbai and if Jaiji was incapable of understanding and executing a document, it is but reasonable to expect that Maneckji would have taken precautions not to hand over to her the property given to her under her mother's Will, and not be content with a receipt signed by herself. It is to be noted that defendant's father Ardeshir as the Agent of Meherbai and Jaiji has admitted execution on behalf of these ladies before the Registrar.

33. Exhibit A13 is a Power-of-attorney jointly executed by Meherbai and Jaiji and their maternal aunt Jerbai, the sister of their mother Hamabai, on the 31st of December 1887. This Power-of-attorney is in favour of the defendant's father Ardeshir and the plaintiff Rustomji. These three ladies were at this time jointly interested in the Jumma Masjid property and the power was given to enable the two male members of the family to recover rents and manage the property jointly on their behalf. Dr. Edulji Nusserwanji, a very eminent member of the Medical profession and a Justice of the Peace, has translated the signatures of the three ladies in English and initialled them and has signed the attestation clause attesting the signatures of these three ladies. I feel quite certain that Dr. Edulji would have refused to attest Jaiji's signature to any formal document such as this power, if he had the smallest ground for believing that Jaiji was incapable of understanding its contents or its effect.

34. Exhibit A8 is a receipt signed by Jaiji in 1890. It was obtained from Jaiji by the defendant's father. In its body an account consisting of several figures is recited and the document purports to be a formal receipt given by Jaiji to her brother in his capacity as their father's executor in respect of payment due to her under her father's Will. Was the defendant's own father content with signature of an imbecile and did he make all these payments to her knowing that she was an imbecile? Small indications are sometimes extremely instructive. Jaiji in her signature acknowledges receipt of Rs. 13,846-6-0. She gives rupees in figures but the annas in abbreviations (thus 6 annas) which shows that not only could she write figures but that she knew the mode of abbreviating annas and pies--a mode with which illiterate people are by no means familiar.

35. Exhibit A16 is proved to be a draft in the defendant's father's own handwriting. It is the draft of a document which he was most anxious Jaiji should execute in his favour. The defendant's father was raising some contentions with reference to the life-interest given to Jaiji in Dr. Concessio's house.

36. He tried to get Jaiji to give in but she refused to do so. She never executed this document. The draft, however, remains and in it there are recitals by which Jaiji was to say that she was doing the acts therein mentioned after reading and understanding the document and of her own free will, sense and intelligence.... This draft proves conclusively that the defendant's father knew Jaiji was capable of executing formal documents, relinquishing rights to properties and that she was gifted with sense, intelligence and understanding.

37. Exhibit A9 shows that the defendant's father Ardeshir had obtained from Jaiji Rs. 4,900 during his life-time either as a loan or as a deposit and this sum was returned to her by Ardeshir's executors after his death. It is quite clear from this document that Jaiji had during the life-time disposed of large sums of money and the defendant's father had money dealings with her, one at least of which is clearly established.

38. There are many other documents of lesser importance that I think no useful purpose would be served by discussing them individually.

39. This is practically all the evidence, oral and documentary, in the case. It will be seen that most of this evidence, if not the whole, is directed towards the question of Jaiji's mental capacity. The deductions to be drawn from the evidence are very clear and transparent. The question as to what Jaiji looked like during her lifetime was set at rest as soon as the cabinet photograph, Exhibit A15, was produced before the Court. That proves beyond all doubt that the witnesses, who stated that Jaiji had a small conical head and a receding forehead, almost amounting to no forehead, were stating what was not true. That photo proves, again, beyond all doubt that Jaiji's face, though by no means handsome, was not by any means an apish face and that there are no apparent signs of imbecility or idiocy on it. I advisedly leave out of consideration the Bromide enlargement because the accuracy of the reproduction of Jaiji's face in that picture is disputed. The cabinet photo, however, is beyond all dispute, and although there may be a difference of opinion as to what Jaiji's face reflects, there can be no question that it is an accurate reproduction of Jaiji's face as it was in life. Having seen this photograph and heard the evidence of all the witnesses in this case, I feel that I could with some confidence picture to my mind what Jaiji was in real life, even though I had not an opportunity of ever seeing her. The conclusions which I draw from the evidence is that Jaiji was bora an ill favoured child, so far as her looks were concerned, that during her life-time she suffered from various ailments and was always in bad health. Dr. D'Souza's evidence establishes that during greater part of her life, if not the whole of it, she suffered from rheumatism in her joints which went to her heart and made her restless and unhappy and kept her in constant pain. She also suffered from chronic diarrhoea. To allay her pains and give her rest the Doctors who, attended to her had to resort to the administration of narcotic drugs, both internally and hypodermically, with the result that with the progress of time, the doses had to be increased to very large ones, before they afforded any relief to her. Probably as the result of her misfortunes, this child became very dear to her father, Maneckji, who seems to have treated her with very great affection and very great indulgence. I have no doubt, like most suffering invalids, Jaiji was at times querulous and troublesome and her father seems to have been most devoted to her and made her happiness the one object of his life and indulged every whim and caprice of hers.

40. The net result of the whole of the evidence I have heard, is to force the conviction on my mind that although Jaiji's mind and intellect were not very bright or active, she had throughout her life sufficient intelligence to thoroughly understand what was going on around her and what she was doing and was fully capable of managing her property and her affairs. It appears that at all events in early life, there were no indications of her mind or her intelligence being inferior to those of any other similarly circumstanced girls. It is possible that bad health, the administration of narcotics and the indulgence in alcoholic drink to allay pains may possibly have had the effect of making her mind sluggish in later life. It may be that the effect of the narcotics administered to her was to produce on her mind some delusions. Those delusions were of the most innocent character and such as many sane people even without the effect of narcotics are sometimes affected with. The delusions on her mind appear to be that she was more good looking than she really was, that she was perennially young and attractive and that people were desirous of marrying her. All attempts to prove other delusions have proved wholly abortive. It seems to me that it would be a monstrous conclusion to arrive at, that because this poor lady afflicted by pain and physical suffering; should have indulged in a few pleasant self-deceptions, that, therefore, she should be stamped as an imbecile or an idiot incapable of intelligent appreciation of the ordinary affairs of this world.

41. Testamentary Courts have never held that before a testator's Will is upheld, it should be proved that he or she should be gifted with a very high order of intelligence. In the case of The Earl of Sefton v. Hopwood 1 F. & F, 578, Creswell, J., directed the Jury, with respect to the testamentary capacity of a testator sufficient to enable the Court to uphold the Will, in the following words:

He must be able to understand his position. He must be able to appreciate his property, to form a judgment with respect to the parties whom he chooses to benefit by it after his death and if he has capacity for that, it suffices.

42. The evidence in this case establishes beyond all doubt and to my complete satisfaction that Jaiji understood her position exceedingly well and was quite capable of appreciating her property when she made the Will. In my opinion she formed a correct judgment with respect to the parties whom she chose to benefit after her death under her Will. She knew that Sorabji, the defendant, would benefit very considerably by her death in that all the properties in which she had a life-interest would go to him. Meberbai and her children had looked after her, treated her with kindness, kept her near them or with them and it is but natural that she should entertain certain feelings of gratitude towards her and desire to benefit them under her Will. Jaiji, I hold, had a disposing mind and she was able to dispose of her property, in the words of Creswell, J., in the case I have mentioned above, with understanding and reason.

43. In another case, Swinfen v. Swinfen 1 F. & F. 584, Byles, J., says: 'Wills are too frequently made by the sick and dying. The degree of understanding, therefore, which the law requires is such as may reasonably be expected from persons in that condition.. He must be able to exercise a competent understanding as to the general nature of the property, as to the state of his family and as to the general condition and claims of the object of his bounty, as to the nature of the instrument which he executes and as to the general nature and general object of the provisions which it contains. If he can do that, though he may be very feeble and debilitated in understanding and be at the point of death, it is enough.'

44. Jaiji made her Will nearly 15 years before her death. When she made it, I am of opinion on the evidence in this case, that she was capable of exercising a competent understanding of every circumstance which a testator should know and comprehend when making a Will. Her mind may have been a bit sluggish. She might not have been as quick of intelligence and understanding as other people around her but there is no doubt whatever that she was fully capable of understanding the nature and extent of her property and forming an intelligent appreciation of the people and the circumstances surrounding her life and wholly capable of reasoning as to whom she should benefit under the Will and of expressing in that Will her mental condition as to who should benefit under that Will.

45. So much for the testamentary capacity of Jaiji.

46. The other ground, on which the Will was challenged, namely, the exercise of undue influence on the part of Meherbai and Rustomji, though never actually abandoned at the hearing, was for all practical purposes a ground that became untenable from the evidence of some of the defendant's own witnesses. In the beginning it was stated that Jaiji was so completely under the domination of Meherbai and Rustomji that she was utterly unable to exercise any free volition of her own, that she had no will which may be called her own and that when she made this Will, she merely carried out the wishes of Meherbai and Rustomji and executed it at their dictation. If the witnesses in the case are to be believed, especially the witnesses called on defendant's behalf, Jaiji was by no means afraid of Meherbai or was under her control. They say at times she abused Meherbai, at times she charged her with standing in the way of her getting married and suspected her of having designed on her money. I have no doubt there is some truth in those statements. I say so more especially having regard to the evidence of Dr. D'Souza. Jaiji, far from having no will of her own, seems to have been through life a very self-willed woman and seemed to know how to enforce that will of hers. Throughout the whole evidence recorded in this case, there is absolutely not a tittle of evidence which goes to prove that Jaiji's will was at any time subordinate to that of Meherbai or Rustomji. And when Rustomji was in the witness box, not a question was asked to him suggesting that he had obtained the making of this Will by enforcing his wishes on Jaiji. While considering this question it is necessary to see what in law is required to defeat a Will on the ground of the exercise of undue influence over a testator or testatrix.

47. The English case law on this subject is crystallized in 48 of the Indian Succession Act and in the Illustration appended to that The lays down that 'A Will or any part of a Will, the making of which has been caused by fraud or coercion or by such importunity as takes away the free agency of the testator, is void' and Illustrations (g) and (h) show that urgent 'intercession' and 'persuasion' or 'attention' and 'flattery' are not sufficient to invalidate a Will on the ground of the exercise of undue influence.

48. In the case of The Earl of Sefton v. Hopwood 1 F. & F, 578, I have referred to above, the learned Judge discusses the subject of undue influence and lays down the following principles which have always been recognized in succeeding cases as sound. He says: 'The subject of Wills procured by influence has been a good deal discussed of late years and I think that the law as at present understood has somewhat modified the earlier opinions on the subject. 1 take it that in order to invalidate a Will on the score of influence, it is not sufficient that you should think the testator has been persuaded into making a Will of a particular kind, that he has been persuaded to benefit this or that person to a certain extent, for in that cased fear that a vast number, if not the greater proportion, might be set aside. What is the sort of influence that is to set aside a Will? Is it the influence exercised by acts of attention and kindness Is it the influence acquired by showing devoted affection? Certainly not. And yet how many Wills are made under the influence of feelings so excited. It must be an influence depriving a party of the exercise of his judgment and his free action. It must be such an influence as induces you to think that the Will when executed is not the Will he desires to execute, that it does not benefit the parties whom he would wish to benefit but that he is doing that which is not his desire and, therefore, not his Will'.

49. In Lovett v. Lovett 1 F & F. 581, Earl, J., discussing the question as to whether a Will was made under undue influence and enunciating the law bearing on this subject, lays down that a Will made merely from motives of gratitude or esteem or affection is not a Will made under undue influence. The undue influence required to set aside a Will, he lays down, 'is the control of another Will over a person whose faculties have been so impaired as to submit to the control of such other person so that the party making the Will has ceased to be a free agent and has adopted the Will of the controlling party'.

50. This is the sort of influence which must be proved to have been exercised over the mind of Jaiji before the defendant can succeed in defeating her Will. The defendant seems to have been wise in resisting the application for particulars, for he had no particulars to give beyond vague allegations and general statements about Meherbai being constantly in Jaiji's company and in her house. There is not a scintilla of evidence to prove that either Meherbai or Rustomji ever attempted to exercise any undue influence and by the successful exercise of such influence obtained execution of this Will. On the contrary, the indications in the case show that Jaiji was a self-willed woman and that far from being a subject liable to have other people's wills superimposed on her own, she was a woman who had a will of her own and knew how to carry it out. In my opinion the defendant never had a case on this head, and ho has most completely failed in establishing that the Will propounded was obtained by the exercise of undue influence on Jaiji by Rustomji or Meherbai or anyone else. Jaiji survived the making of this Will for nearly 15 years and it would be manifestly absurd to hold that the undue influence even if exercised in 1895 which I find was ever done continued its way right up to her death; thereby preventing her either from revoking this Will or making another.

51. On the Issues, I find (1) that the Will propounded is the last Will of the deceased Jaiji, (2) that at the date of the Will propounded the deceased was of sound and disposing state of mind and (3) that the execution of the Will was not brought about by the undue influence of the plaintiff Rustomji and his mother Meherbai or either of them.

52. I dismiss the caveat and direct that Probate be granted of the Will propounded by the plaintiffs.

53. The question of' costs has been the subject of my most anxious consideration. If the defendant Sorabji had come to the Court and stated that ho believed that Jaiji was not a lady of much intelligence and he suspected that that Will was obtained by undue influence of those surrounding her and asked that the plaintiffs may be put to solemn proof of the Will, so that the conscience of the Court may be satisfied that it was Jaiji's real Will, I would have made no order for costs against him. Here, however, in this case, he adopted a most inimical and offensive attitude towards the second plaintiff. He instructed his counsel to make grave charges against him, charges amounting to the commission of criminal offences without instituting adequate enquiries, he has occupied by his action a great deal of the Court's time and put the plaintiffs to much costs.

54. Under the circumstances, he has left me no alternative but to direct that ho should pay all the plaintiffs' costs of this suit, including all costs reserved if any.

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