1. Originally the plaintiff had taken out an application under Section 276 of the Indian Succession Act for obtaining probate of the Will of his sister late Dr. R. Mariamma (hereinafter referred to as the testatrix) and on the notices issued by this Court to other heirs of the testatrix, the defendants had entered appearance and accordingly this Probate Petition was converted into Testamentary Original Suit 1/1982.
2. The plaintiff is the eldest brother of the testatrix and the defendants are the younger brothers of the testatrix.
3. The testatrix died on the 26th of November 1980 at about 4-30 A.M., while she was undergoing treatment for terminal Cancer at Ashok Nursing Home, Ulsoor, Bangalore-8. At the time of her death, she was residing at 304A, 100 Feet Road, Indiranagar, Bangalore-38. It is not in dispute that she was suffering from cancer at the time of her death and she had been treated earlier both at the Cancer Hospital in Bangalore as also at Ashok Nursing Home. Some time in the first week of November, 1980 her condition became worse and therefore she had to be under the constant care of doctors and. nurses and accordingly she was admitted again to the nursing home where she breathed her last. On the 12th of November 1980 she executed a Will bequeathing her properties movable and immovable to her eldest brother, that is, the plaintiff in this suit. She died nearly two weeks after the execution of the Will in favour of the plaintiff.
4. The plaintiff in support of the validity of the Will has examined himself and three witnesses, namely, the two attesting witnesses -- Dr. Mundhra, who was treating the testatrix; the Advocate Venkataramanappa (who drafted the Will)-and the Notary by name Anthony De Costa, who was present at the time of the execution of the Will. The second defendant has examined himself and one Parish Priest by name Fr.S. Jayanathan. There is no serious dispute about the execution of the Will by the testatrix on the 12th of November 1980. But the point for consideration is whether she was possessed of disposing state of mind when she executed the Will since it is common ground that she could not subscribe her signature to the Will because of her deteriorating health on the date the Will was executed and therefore she had to be helped to affix her thumb impression to the said document. According to the plaintiff, though she was suffering from cancer and was under sedatives she was in a fit condition to execute the Will. But according to the defendants, her mental faculties had been greatly impaired by the drugs that were being administered to her to relieve the pain from which she was suffering and therefore there was no possibility of executing the Will in the manner it was done on the 12th November 1980. Their further case is that the very fact that the entire property of the testatrix was bequeathed to the plaintiff depriving her other brothers who were well-disposed towards her and there was mutual affection would indicate that it was the plaintiff who manoeuvred to get the document executed when she was not in a disposing state of mind and therefore this is not a fit case for grant of probate as prayed for by him. So, the two important points that arise for consideration in this suit are :
(1) Whether there was a proper execution of the Will by the testatrix in favour of the plaintiff on 12-11-1980 ?
(2) Whether there are any suspicious circumstances surrounding the execution of the Will which would disentitle the plaintiff from claiming the grant of probate of the Will in question ?
These two points will have to be decided on the appreciation of the evidence let in by the parties, since as noticed earlier the original petition was only for grant of probate in common Form and therefore there were no pleadings by the parties in support of their respective contentions. Their contentions will have to be now culled out from the evidence on record.
5. The original Will which is before me bears the seal of the Notary who was present at the time of the execution of the Will and the left thumb impression of the testatrix on every page of the Will. The last page that is, page number three of the Will bears the signatures of the two attesting witnesses, namely, Dr. Mundhra, the surgeon who was treating her at Ashok Nursing Home till she breathed her last and Venkataramanappa, the Advocate who had drafted the Will. It is common ground that neither the plaintiff nor the defendants were present at the time of the execution of the Will and therefore their evidence is of no use at all to decide whether there was due and proper execution of the Will by the testatrix. Their evidence may be relevant to find out the suspicious circumstances which according to the defendants raise considerable doubts about the genuineness of the Will. Their evidence Will be considered separately. But on the point of due execution of the Will by the testatrix the evidence of the two attesting witnesses, namely, Dr. Mundhra and Advocate Venkataramanappa, the evidence of the Notary Public who was also present in the ward where the Will was executed by the testatrix and the evidence of Fr. Jayanathan (DW-2) who had administered the last unction to the deceased immediately after the execution of the Will, Will have to be considered.
6. The Notary Anthony De Costa is examined as PW-2. According to his evidence, he received a phone call from a fellow advocate by name Jayachandra Raj requesting him to attest a document in a nursing home in Cambridge Road. He agreed to do so and fixed 12 noon on the 12th of November 1980 for doing the needful and he requested Jayachandra Raj to go over to his chambers with a transport. Accordingly, Jayachandra Raj came along with Advocate Venkataramanappa, who is examined as PW-4. The Will had already been prepared by that time and it was shown to him. When all these three persons reached the nursing home they were taken to the room where the testatrix was being treated. There was a Catholic Priest, a nurse and a few people at that time. He asked for Dr. Mundhra (PW-3) who owns the nursing home and he was taken to the room where Dr. Mundhra was working. Dr. Mundhra asked him the purpose of his visit to the nursing home and he stated that he had come there to attest the Will of the testatrix. He was informed by Dr. Mundhra that she was unable to sign because she was very weak. He asked Dr. Mundhra whether she was able to understand what was going on and Dr. Mundhra replied that her mental condition was good though she was weak. He asked him whether he (Dr.Mundhra) would attest the Will and Dr. Mundhra agreed to do so. Accordingly, they went to the room of the testatrix. Advocate Venkataramanappa asked all the people who were in the room at that time to leave the room. The persons who were present at the time of the execution of the Will were himself, Dr. Mundhra (PW-3), Venkataramanappa (PW-4), Jayachandra Raj and the nurse. He then sat next to the testatrix's bed and asked her if she knew what the document was which he had with him. She told him that it was the Will which she had asked Venkataramanappa to draw. He read out the Will to her and she indicated by a nod after each sentence was read out to her. After the entire Will was read out he took her left thumb impression on the Will which is produced as Ex. P. 1 and he also took her left thumb impression on the notarial registers. He has also spoken to the fact that Dr. Mundhra and Venkataramanappa attested the Will. From his evidence two things are clear that the contents of the Will were read-over by him to the testatrix and she knew the contents thereof. The fact that she had nodded her head expressing her assent to the contents of the Will indicates that though she was suffering from cancer and was under sedatives her mental faculties had not been impaired by the drugging and she Knew that she was executing her Will. His evidence also proves that there was attestation by two witnesses, namely, Dr. Mundhra and the advocate Venkataramanappa. This evidence is not seriously challenged in cross-examination. Though he frankly admitted that there was no need for a Notary Public to be present at the time of execution of the Will, his presence as a Notary by itself at the time of execution of the Will would not in any way render the Will invalid in law. Perhaps knowing fully well that there might be complications because of her feeble state of health at the time of execution of the Will, the advocate who prepared the Will would have felt that the presence of a Notary Public would remove all doubts about the due execution of the Will, His evidence also shows that being a Notary he had taken care to see by asking the doctor who was treating her whether she was possessed of disposing state of mind for executing the Will.
7. The other two witnesses, namely, PWs 3 and 4 speak about the attestation of the Will and also the execution of the Will by the testatrix by affixing her thumb impression. Dr. Mundhra was examined as PW-3. In his examination-in-chief he had stated that he attested the Will of the testatrix on 12-11-1980 at the ward where she was kept, some time in the forenoon at about 11 O'clock. He has identified his signature at Ex. P. 1(d). Regarding the condition of the testatrix, he has stated that she was very weak ; that she could not take food ; that she was being fed intravenously even at the time of her admission in the nursing home ; that her thumb impression was taken in his presence as she could not write. But he did not remember whether she affixed her thumb impression herself or she was assisted to do so ; that the contents of Ex. P. 1 were read out to her by the Notary Public whom he knew casually ; that the testatrix was in full consciousness at that time (but he said so hesitatingly) ; that his impression at the time was that the testatrix understood what was read out to her. In cross-examination it was elicited from him that the testatrix and defendant No. 2 were in good terms and defendant No. 2 was coming to the nursing home many times to look her up ; that the sedatives have the effect of making a person semi-conscious ; that she was given For twin, a pain killing drug, about 30 to 60 milligrams every day ; that she had lost control of urination and bowel movement almost from the beginning of November. But losing control over her excretory functions would not in any way affect her consciousness ; that the presence of the drip-needle in the veins of the arms would not hinder the movement of arms ; that though she could not talk at length she could express her basic needs ; that on the date she executed the Will she was not in a position to subscribe her signature. The suggestions made to him that the Will was not read out to her and that she did not understand the contents of the Will were all denied by him. In re-examination it was brought out that he would not rule out the possibility that the administration of drug For twin to the testatrix would have impaired her mental faculties. Though this witness was categorical in his assertion that her mental faculties were in good order when she executed the Will what he stated in re-examination was that there was a possibility of the drugs affecting her mental faculties. Since the question put to this witness was not recorded by the Court, it is not possible to know whether he had contradicted himself. His evidence by itself may not be very satisfactory for proving the due execution of the Will, but if his evidence is taken into consideration along with the evidence of other witnesses the burden cast on the plaintiff, in my view, had been fully discharged. The other two witnesses, namely, PWs 2 and 4, in my view, prove beyond any doubt the due execution of the Will. PW-4 was the Advocate who drafted the Will fof the testatrix. He appears to have conducted one of her cases in the Civil Court and that is how the testatrix was familiar with him. According to his evidence, he was sent for on the 7th November 1980 while he was in one of the City Civil Courts ; that he received the message from the nursing home on 7-11-80 sometime at 12 noon and on the same day in the evening he met the testatrix. There were some ladies present in the room when he met her and they were asked by the testatrix to leave the room presumably because she wanted to give him instructions regarding the Will. Soon after the ladies left the room, the testatrix asked him to draft the Will according to her intentions. She had expressed that she waited to bequeath all her properties to her brother Joseph, that is, the plaintiff and when he questioned her why she was hiving all her properties to her brother, and not to the other brothers, she volunteered to say that her other brothers were well-off and the plaintiff was not very well to do and he had a large family to look after. Accordingly, he prepared a draft Will on the 10th November 1980 and on the same evening he went back to the nursing home. He read out the contents of the draft Will to the testatrix and she told him 'to go ahead'. There were two other ladies present when the draft Will was read out to her and those ladies were asked to pay a sum of Rs, 500/- as his fees. On the 11th morning he contacted Jayachandra Raj, Advocate, so that he could secure the services of a Notary Public and Jayachandra Raj obliged him and told him that the Notary Public would be available on the 12th and that he should go to his place on that day and accordingly he went to the chambers of Jayachandra Raj who took him to the Notary Public (PW-2). Thereafter all the three went together to the nursing home and it was about 15 minutes past 12 noon. Soon afterwards the Notary Public left the ward as he wanted to see the doctor and that doctor was Dr. Mundhra (PW-3). He also speaks about the presence of three ladies and some other persons in the ward at that time and they were asked to go out so that the testatrix could execute the Will. By then the Notary Public PW-2 returned with Dr. Mundhra and he (Notary Public) read out the contents of the Will. After it was read out, the testatrix put her thumb impression on the Will at three places. She was resting on the bed 'slanting on her back'. In that position she had affixed her thumb impression to the Will Ex. P. 1. She appeared to be weak on that day and that is the reason she was not able to sign the Will. After she affixed the thumb impression he and Dr. Mundhra attested the thumb impression. His evidence is of considerable significance for proving the proper execution of the Will. The Will was prepared by him on the instructions given by the testatrix ; the Will was attested by him in the presence of other attesting witness Dr. Mundhra and also in the presence of the Notary Public PW-2. His evidence on the preparation of the Will as per the instructions of the testatrix and the due execution of the Will in the ward was not challenged in cross-examination. The only suggestion put to him was about her feeble state of health and he had stated in cross examination that when she visited her on 7th November 1980 he only noticed that she had a feeble voice. In the circumstances, the evidence of the Advocate Venkataramanappa regarding the preparation, the execution and attestation of the Will has remained unchallenged and therefore his evidence taken along with the evidence of the other attesting witness Dr. Mundhra and the Notary Public PW-2 would establish beyond doubt that there was a proper execution of the Will by the testatrix. Any lingering doubt about the mental faculties of the testatrix is removed by the evidence of the defendants' witness DW-2 Fr. Jayanathan. He is the person who administered the last unction to the testatrix. In his examination-in-chief he had stated that 'the extreme unction' was administered in the ward of the nursing home. She was weak but she recognised him, and whispered her thanks to him. In cross examination it was elicited that on the day he administered the 'extreme unction' he had to wait in the lobby as 'lawyers were inside' the ward and he saw the lawyers. One of them was the Notary Public PW-2 and when he administered the communion the testatrix could follow the procedure for communion and she was also able to swallow what was given to her as communion, a piece of white bread. His evidence also discloses that the testatrix though suffering from acute pain being afflicted by cancer her mental faculties had not been impaired. Though her voice was feeble she could whisper and make herself understood. So the evidence of PW-2 the Notary Public, Dr. Mundhra (PW-3) PW-4 Venkataramanappa and DW-2 Fr. Jayanathan read together would establish that the testatrix was possessed of disposing state of mind at the time she executed the Will. It also should be borne in mind that the testatrix did not die on that day but she died on the 26th November, 1980, nearly 15 days after the execution of the Will and therefore it cannot be said that on the 12th she had lost all consciousness and was not in a position to know what she was doing when she affixed her thumb impression to the document Ex. P. 1.
8. However, it is contended by the Learned Counsel for the defendants that the suspicious circumstances which surrounded the execution of the Will and the manner in which it was sought to be probated throw considerable doubt about the genuineness of the Will and therefore this Court should satisfy itself whether the plaintiff has discharged the burden cast on him to prove that these surrounding suspicious circumstances did not in any way affect the validity of the Will. The two suspicious circumstances, according to the defendants, arc that the Will was executed when the testatrix was in a critical condition in the nursing home and there is every possibility of the plaintiff bringing undue influence or pressure on her weakened state of mind to execute the Will in his favour. Therefore the testatrix who was well-disposed towards other brothers and there was also mutual affection between her and her other brothers would not have in the ordinary course, deprived the other brothers of a share in her properties. This suspicious circumstance regarding the execution of the Will, in my view, does not arise since the evidence of the attesting witnesses as also the Notary Public has clearly removed any such circumstances regarding the due execution of the Will. Therefore, the only suspicious circumstance is whether anything can be said about the disposing state of mind of the testatrix by the mere fact that she had bequeathed the entire property to the plaintiff and not to her other brothers. The answer to this question is found in the evidence of PW-4 Venkataramanappa. This is not a case where the document has sprung into existence just before the testatrix breathed her last. She knew that she was suffering from cancer or perhaps knew that she would not live longer and therefore she requested her Advocate Venkataramanappa to prepare her Will. Accordingly, he was sent for a draft was prepared by him on the 10th November, the draft was read over to her on the very same day and she had agreed with the contents thereof and it was according to her intention, namely, that her entire estate should go to the plaintiff as he was a person with a very large family. It. has come in the evidence that the defendant No. 2 Chinnappa had retired as Accountant General and defendant No. 1 had left the family house quite some years ago and he had set up his own house and living with his family, and his family was not as big as the family of the plaintiff. Whereas the plaintiff had a big family consisting of twelve children though it had been elicited from him that five of his sons had settled down and holding good jobs but there are several other children who have yet to settle down in life. He is about 72 years now and therefore no oblique motives can be imputed to the testatrix for bequeathing her entire property to the plaintiff. It was suggested to the plaintiff that he brought undue influence and pressure on the testatrix to bequeath all her properties in his favour. As noticed earlier, the evidence of PW-4 is destructive of the suggestion made by the Learned Counsel for the defendants that the plaintiff had himself went over to the testatrix during the critical period of her life in the nursing home and induced her to execute the Will in his favour. The right to dispose of her property in the manner she liked cannot be disputed since the parties are Christians and the properties are the self-acquired properties of the testatrix. Therefore, it was up to the testatrix to dispose of her property in the manner she liked by executing an instrument which could stand the scrutiny of law. The execution in my view is in accordance with the provisions of Section 63 of the Indian Succession Act and Illustration No (iii) to Section 59 of the said Act would clearly demonstrate that the testatrix though feeble and debilitated was capable of exercising her judgment as to the proper mode of disposing her property and could make a valid Will. The Illustration reads as under :
'A, being very feeble and delibitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a Will. This is a valid Will.'
9. In the light of the aforesaid discussion of the evidence of the witnesses for the plaintiff, the evidence of DW-1 Chinnappa on behalf of the defendants may be noticed. He speaks to the fact that the testatrix was suffering from cancer that on 9th November her condition had worsened and the doctor informed him that they may send for her relatives and friends; that he informed what he had learnt from the doctor ; that on 9th November it was impossible for him to communicate with her and talk to her; that her eyes were closed and she was also not able to speak; that he could say that her condition remained the same till the end as far as he knew. He does not say about her mental condition on the crucial date, namely, 12th November, 1980. He generally speaks about her physical condition. But his evidence does not in any way take away the effect of the evidence of Dr. Mundhra (PW-3), the Notary Public (PW-2) and Advocate Venkataramanappa (PW-4). He also does not say that the plaintiff had brought any undue influence or pressure on the testatrix. In cross-examination it is elicited that the plaintiff Joseph has twelve children; that about the time of the death of his sister the plaintiff was the only person who did not have a house of his own; that he was not aware of the execution of any Will by his sister; that it is possible that his sister had some respect for Joseph, i.e., the plaintiff whom she had followed in family line; that the plaintiff is poorer than him and his brother Prasad. The only thing that is elicited against the plaintiff is that he does not think the testatrix wanted to favour the plaintiff because he was poorer and had such a large family. On this evidence of DW-1 it is not possible to come to the conclusion that there are suspicious circumstances surrounding the execution of the Will.
10. One important aspect of the case which requires consideration for a finding in favour of the plaintiff is the drafting of the Will by the Counsel for the testatrix. If the Will had been prepared by the plaintiff himself or if he had taken a major part in the preparation and execution of the Will it could have been rightly said by the defendants that all was not well with the Will and a greater degree of proof was necessary in order to accept the genuineness of the Will. The Wills prepared by Counsel on instructions from their clients form a distinct class. In V.E. Desouza and Anr. v. R.P. Desouza and Ors., AIR 1956 Madhya Bharat 246. There is a reference to a number of decisions on this point. That is also a case where the validity of a Will prepared by a lawyer on the instructions of the testator was challenged. The Division Bench of the Madhya Pradesh High Court after referring to the English decisions on this point upheld the validity of the Will. The Division Bench observed that :
'Where the testator had met personally the Vakil, who drafted the Will and, he himself had given instructions and the Will was drawn in accordance with those instructions it was certainly not a case of a testator giving instructions to a lay intermediary who repeated them to a lawyer where opportunities for errors in transmission might occur:'
It was held in Parker v. Felgate, (1883) 8 PD 171 as under :
'If a person has given instructions to a solicitor to make a Will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good Will, if executed by the testator, is that he should be able to think thus: 'I gave my solicitor instructions to prepare a Will making it a certain disposition of my property ; I have no doubt that he has given effect to my instructions, and I accept the document which is put before me as carrying it out.'
In the circumstances, the decisions on which the learned Counsel for the defendants relied, namely, Ramachandra Rambux v. Champabai and Ors., : 6SCR814 , Pushpavati and Ors. v. Chandraja Kadamba and Ors., : AIR1972SC2492 , Ashutosh Sealv. Smt. Umashasi Santra, : AIR1984Cal223 and the decision of our High Court in Irawna Alias Kanchawwa and Anr. v. Basalingappa Shiddappa Karikatti, AIR 1973 Mysore 238 do not appear to be on the point. On the facts of those cases the Supreme Court and the High Courts had held that the plaintiff had not discharged the onus cast on him to disprove the suspicious circumstances that surrounded the execution of the Will. Those are not cases where the Will was drafted by the advocate on testator's instructions. On the other hand, the decision of the Supreme Court in Smt Indu Bala Bose and Ors. v. Mahindra Chandra Bose and Anr., : 1SCR1188 appears to be on the point. The Supreme Court after adverting to its earlier cases reported in : AIR1964SC529 , Shashi kumar Banerjee v. Subodh Kumar Banerjee and : 3SCR195 , Rani Purnima Devi v. Kumar Khagendra Narayan Deb observed as follows:
'This Court has held that the mode of proving a Will docs not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. Needless to say that any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.'
In the light of these observations it is futile for the learned Counsel for the defendants to contend that all because his clients were deprived of a legitimate share in the properties of the testatrix, the plaintiff is not entitled to the grant of probate. May be that the advocate who drafted the Will did not give any reasons for bequeathing the entire property to the plaintiff. But it has come in his evidence that the wish of the testatrix to bequeath the entire property on the plaintiff was motivated by the fact that the plaintiff had a very large family to care for. That he has a large family is not disputed. In the circumstances, the failure of the advocate to insert a recital to this effect in the Will would not affect the validity of the Will. It may be a remissness on the part of the advocate who drafted the Will but that does not go to the root of the matter on the evidence on record.
11. One more suspicious circumstance on which the defendants relied is the manner in which the probate was sought to be obtained by the plaintiff. Admittedly the plaintiff did not implead the defendants as parties. But it has come in the evidence of the plaintiff that he did not tell his advocates that the testatrix had other brothers apart from himself. No motives could be attributed to the plaintiff for not bringing the defendants on record. Now that the defendants have come on record and they have been heard, I do not think the failure of the plaintiff to implead them in the probate petition would raise any suspicious circumstances on the due execution of the Will. It has also come in the evidence of the plaintiff that the Will was not in his custody. It was in the custody of Advocate Venkataramanappa who, in turn, gave to the plaintiff after the testatrix passed away. Therefore, the Will has come from proper custody and this is one of the important circumstances for establishing the genuineness of the Will.
12. In the light of the above discussion, Issue No. 1 is answered in the affirmative; Issue No. 2 is also answered in the affirmative and Issue No-3 is answered against the defendants.
13. In the circumstances, the suit is decreed and there shall be an order granting probate in solemn form as prayed for by the plaintiff. The decree shall be drawn up as provided in Form No. 7 of the Probate and Administration Matter Rules. The plaintiff shall pay the probate duty payable on the assets of the deceased as per valuation made in the original petition. He shall also file an inventory of the properties and credits of the deceased within six months from this date and the final accounts within one year from the said date.
14. The original Will shall be kept in the safe custody of the Registrar of this Court.
15. In the special circumstances of the case, I direct the parties to bear their own costs.