Gopal Rao Ekbote, J.
1. This second appeal is filed by the plaintiffs whose suit has been dismissed by the Second Additional Chief Judge, City Civil Court, Hyderabad through his judgment dated 30th November, 1962.
2. The necessary facts in order to appreciate the contentions raised before me may be briefly stated.
3. Plaintiff No. 1 claimed himself to be the illatom-son-in-law of one Nagiah who died leaving the suit property. Plaintiff No. 2 is his daughter married to the 1st plaintiff; and plaintiff No. 3 is the son of the first two plaintiffs. It was alleged inter alia in the plaint that Nagiah was the owner of the property. He died on 5-11-1951 leaving the plaintiffs as his heirs. The deceased before he died made a will under which he gave his entire movable and immovable properties to the plaintiffs. It was denied in the plaint that Ethirajamma 1st defendant was the legally wedded wife of Nagiah. It was also alleged that she was a concubine kept by Nagiah but .she was leading an unchaste life. Under the will the plaintiffs claimed the property.
4. It was stated that the second defendant had instituted a suit for specific performance of an agreement to sell alleged to have been entered into by Nagiah, In that suit Nagiah had pleaded that there was no agreement executed by him and that it was a forgery. The trial Court after recording the evidence had dismissed the second defendant's suit holding that the agreement was a forgery. The second defendant therefore, preferred an appeal in the High Court. During the pendency of the appeal, Nagiah died, and there was dispute as to who should be brought on record as the L. Rs of Nagiah. Both the first defendant as well as the plaintiffs applied. Ultimately however the High Court Drought the first defendant on record as the L. R. of Nagiah and rejected the application filed by the plaintiffs. After Ethirajamma was brought on record as the L. R. of the deceased Nagiah she seems to have entered into a compromise with Tekchand defendant No. 2 whereby she agreed that her late husband had received Rs. 15,000 towards part payment of the sale agreement and that one had no objection if the sale deed is executed in pursuance of the said agreement. On the basis of that compromise the High Court decreed the second defendant's suit for specific performance. The plaintiffs in this case now alleged that that decree based on compromise is not binding on the plaintiffs as that is vitiated by fraud.
5. Ethirajamma remained ex parte. It is the second defendant who raised various pleas. He alleged that the will was a forged one and that Nagiah has not left any such will; nor the plaintiffs get the property under any such will. It was also stated that Ethirajamma was the legally wedded wife of Nagiah; that plaintiff No. 1 is not the illatom son-in-law of Nagiah although it was admitted that the second plaintiff is the daughter of Nagiah married to the first plaintiff; third plaintiff being their son. It was denied that the compromise was brought about by any fraud practised on the Court.
6. Upon these pleadings the trial Court framed several issues and after recording the evidence of the parties decreed the plaintiffs suit. It was held by the trial Court that Nagiah left the will in question bequeathing the suit property to the plaintiffs. It was, however, held that Fthirajamma is the legally wedded wife of Nagiah and that the first plaintiff is not the illatom son-in-law of Nagiah. It was also found by the trial Court that the decree obtained by the second defendant against the 1st defendant in his suit is vitiated by fraud.
7. Aggrieved by that Judgment the second defendant carried the matter in appeal before the 2nd Additional Chief Judge, City Civil Court, Hyderabad, His appeal was allowed. The learned 2nd Additional Chief Judge reversing the Judgment of the trial Court held that the will seems to have been brought up by the plaintiffs and is not a genuine one. It was also found that the compromise decree obtained by the Second defendant is not vitiated by fraud. The learned Judge concurred with the opinion of the trial Court that the Ist plaintiff is not the illatom son-in-law and that the first defendant is the legally wedded wife of Nagiah. It is this view or the learned 2nd additional Chief Judge that is now assailed in this second appeal.
8. Two contentions are raised before me by Mr. Y. Satyanarayana the learned counsel for the appellants. It was firstly urged that the lower appellate Court has erred in attaching greater importance to suspicious circumstances and ignoring the evidence of the scribe and the attesting witness produced to prove the execution of the will. Secondly it was contended that the compromise decree is vitiated by fraud practised on me High Court in obtaining decree on the basis of the compromise.
9. In order to appreciate the first contention it is necessary to keep in view certain well recognised principles in regard to the proof of a will. As regards the onus in cases of wills the rules are quite clear. The first rule is that the onus probandi lies in every case upon the party propounding a will. He must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second rule is that if a party writes or proposes a will under which he takes the benefit or if any other circumstances exist which excite suspicion of the Court and whatever their nature may be, it is for those who propound the will, to remove such suspicion and to prove the factor that the testator knew and apprised the contents of the will and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence Or whatever they rely upon to displace the case for proving the will.
10. The abovesaid two principles have been laid down by their Lordships of the Privy Council in Harmes v. Hinkson, AIR 1946 PC 156. These principles have received the seal of approbation of the Supreme Court in H. Venkatachala v. B. N. Thimmajamma, : AIR1959SC443 . It is perhaps profitable to refer to some of the relevant paragraphs, of the judgment of the Supreme Court. At page 452 their Lordships observed:
'There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the pro-pounder's case that the signature in question is the signature of the 'testator may not remove the doubt created by the appearance of the signatures the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorlly discharged, Courts would be reluctant- to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the pro-pounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of Judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'Conscience' in this context would if our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.'
It must however be remembered thai no specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. The conduct of parties apart from the other proof is very material and has considerable bearing on evidence as to the genuineness of will. It is thus seen that burden of proving that the document is the last will of a free and capable testator is on the propounder. In suspicious circumstances the Court ought to be vigilant and zealous in examining evidence to satisfy themselves as to genuineness of will. This rule may not be a rule of law but certainly is of prudence.
11. Whether or not the evidence in a given case is such as to satisfy the conscience of the Court, must always be in the end the question of fact. I am therefore, clearly of opinion that the suspicious circumstances, if any in the case, have to be removed by the propounder of the will and that onus is a part of his obligation to prove the execution or genuineness of the will and the capacity of the testator to make such will. I am not prepared to agree with the argument that in cases of will, it is enough if the scribe and the attestors are produced to testify that the testator had affixed his signature on the will and that it is his last will. No doubt the trial Court has accepted this view of the matter; but I do not think he is correct in that regard. From the cases cited above it becomes abundantly clear that it is for the propounder to not only prove the execution of the will hut repel all such circumstances which create suspicions in the mind of the Court. It is not as if this obligation is separate from the burden to prove the execution of the will. It is now axiomatic that the will being a solemn document is written by a dead person who cannot be called in evidence to testify about the execution of his will but it is the living persons who have to find out whether the will was so executed by him or not. It throws naturally heavy burden upon those who propound the will and if the will is surrounded y suspicious circumstances it becomes part of this duty to repel them in order to satisfy the conscience of the Court.
12. The trial Court, in my judgment, was wrong in not considering the various suspicious circumstances which were brought to its notice. The learned 1st Asst. Judge thought that the suspicious circumstances brought to his notice are of mere speculative character and a piece of research work which the defendants are doing. I do not think there is any justification for any such observation. Under the law as mentioned above it was his bounden duty to consider the circumstances brought to his notice, examining them carefully, and then find out whether in the back ground of those suspicious circumstances the execution of the will can be said to have been proved. He summarily dismissed from his consideration various arguments advanced by the second defendant before him. The appellate Court however applied its mind to various suspicious circumstances and has reached the conclusion that in view of those circumstances and the discrepancies appearing in the oral evidence adduced by the plaintiffs, it cannot be said that the will has been executed by the testator. He reached the clear conclusion that the will seems to be a fabricated will. This conclusion, it is not disputed, is a conclusion of fact and that finding of fact is binding upon me and it is hardly possible for me to re-evaluate the entire evidence oral as well as documentary in order to find out whether the said conclusion ol the lower appellate Court is correct or not. Even otherwise I am satisfied that there is ample evidence on record to doubt the genuineness of the will. There are positive factors which justify the conclusion of the lower appellate Court that the document has been brought into existence to serve the ends of the plaintiffs.
13. Before I deal with the conspicuous suspicious circumstances of the case, I must refer to the common case of the parties. It is not now in dispute that Ethirajamma is the legally wedded wife as is found by both the Courts below. It is also clear that the 1st plaintiff is not the illatom son-in-law of Nagiah as that is also found against the plaintiffs by both the Courts below. There is nothing on record to show that the relations of Nagiah with Ethirajamma was in any manner strained. It is on the other hand admitted that the relationship of the plaintiffs and Nagiah was very much strained. The plaintiffs had instituted a suit against Nagiah for a declaration that the endowment which he was creating in regard to property at Seetaphalmandi was bad because he had become a sanyasi and was not competent to endow his property. In that suit Nagiah was contesting that he has the capacity to create an endowment as he has validly done and that the plaintiffs cannot object to it. That suit admittedly was not only pending at the time of Nagiah's death, but continued till about 1955 when it was dismissed. It is thus clear that the relationship of the plaintiffs with that of Nagiah remained strained to the end of his life. The lower Court has disbelieved the contention of the plaintiffs that they were living with Nagiah and were in possession of the property during his lifetime.
[His Lordship then discussed the evidence (paras 14 to 16) and proceeded].
I am thus satisfied that the will is suspicious in its provision as well as in the circumstances in which it is said to have been made. The circumstances discussed above clearly indicate that the will was fabricated. It should not cause surprise in view of wild allegation of unchastity made by the plaintiffs against the widow i.e., 1st defendant. They even denied her marriage with Nagiah and falsely set up a plea of illatom son-in-law as far as the 1st plaintiff was concerned. I am also satisfied that the plaintiffs have not led sufficient evidence which on close and careful examination would remove the suspicions mentioned above. The lower appellate Court who was naturally very vigilant and zealous in scrutinising the evidence, has correctly, in my judgment, reached the conclusion that the plaintiffs have failed to discharge their onus to repel all suspicions and have also failed to adduce reliable and independent evidence in proof of the genuineness of the will.
17. Mr. Y. Satyanarayana relied upon Kristo Gopal v. Baidya Nath, AIR 1939 Cal 87. It is true that in that case it was held by a Bench of the Calcutta High Court that:
'The learned District Judge however instead of applying his mind to a dispassionate consideration of this evidence, starts off making all kinds of speculations as to what he calls 'circumtances of suspicion' and in view of the opinions which he has led himself to form regarding such circumstances, proceeds to throw aside the whole of this postive evidence as if it did not exist at all.'
I do not think that that case decides anything contrary to what has been decided by the Privy Council or the Supreme Court referred to above.
I do not think therefore, the above said decision renders any service to the appellants.
18. Miss v. Laxmi Devi the learned Counsel for the respondent relied upon Mst. Ramanandi Kuer v. Mst. Kalawati fuier, AIR 1928 PC 2 and Mt. Biro v. Atma Ram, AIR 1937 PC 101 in support of her contention that the circumstances adverted to in her arguments lead to an inescapable conclusion that the will is not a genuine one.
19. In the first case it was observed by the Privy Council that:
'Where it was proved that though care was taken to obtain as many as 14 attesting witnesses to the will, the simple precaution of getting the will registered at the local registration office was not adopted, that no doctor or lawyer attested the will specially in view of the serious nature of the illness, that it practically disinherited the testator's widow ana his only daughter, that immediately after the testator's death the father of the legatee of major portion, who was also the natural father of the testator who had been given in adoption, purported to act as proprietor of the estate in paying Government revenue and in granting receipts to tenants of the estate, that the will was not produced or probate applied for until the father had been called upon to explain his above mentioned conduct and after that circumstance he tried to get some witnesses to attest the will and it was further found that the testator was at the time of execution at a different place.
HELD: that the will was not the will of the testator and was a fabricated document.' In the second case their Lordships of the Privy Council held:
'That in view- of the strange provisions, and considering the niggardly manner in which the daughter, who should have been the proper object of her father's bounty, was treated, the will was an inofficious testament. It was most unlikely that a person having a wife and a minor unmarried daughter would make a will which would practically disinherit them. The testament was unnatural and ran counter to the ordinary sentiments of persons having status. These are circumstances telling against the genuineness of the will, and the failure of the widow to mention the will on critical occasions warranted the conclusion that the will was not made by the testator.'
I therefore, find no reason to disagree with the conclusion of the lower appellate Court that the will in question is not a genuine document and the plaintiffs have failed to discharge their burden to prove the will.
[His Lordship again discussed the evidence (Para 20) ]
21. It was then contended that the deceased had filed a written statement denying the execution of the agreement to sell and in the compromise the widow admitted contrary to the written statement that the agreement was executed by the deceased and that he had received Rs. 15,000 towards that agreement. It is contended on the basis of this contrariety that the legal representative could not take up a plea which is inconsistent with the plea taken by the deceased. In support of this submission reliance is placed on Yesnwant Rao v, Bhalachandra Rao, AIR 1952 Madh B 207. As far as the proposition of law is concerned that in a pending suit the legal representatives who are brought on record are not permitted to take inconsistent pleas or plead what the deceased could not have pleaded, need not be disputed. It has however no relevance as far as mis case is concerned. It may he that the deceased had taken a stand in denying the execution of the agreement or receipt of any consideration. That does not, however stop the legal representatives from entering into a compromise in an appeal pending against the decision of the trial Court. Nothing is shown to me as to how ihe compromise will be bad in law in such a case. The widow was not filing any additional written statement which is inconsistent with the written statement of the deceased. It was a case of compromise and in a compromise it is unnecessary to find out whether the compromise petition is in accordance with the stand taken by the parties.
22. I see therefore, no force in this contention.
23. Finally my attention was drawn to the applications (C. M. Ps Nos. 4491 to 4493 of 1964) filed seeking amendment of the plaint. It it stated that the widow died during the pendency of the 1st appeal. Her death entitled the daughter i.e., the 2nd plaintiff to become the absolute owner of the property in accordance, with section 14 of the Hindu Succession Act. It is sought that after the amendment, her claim should be decreed on that basis. I do not see any reason to permit any such amendment at this stage. Even if such a permission is granted, it will not serve the purpose of the 2nd plaintiff. Both the Courts below have held that the 1st defendant is the legally wedded wife of Nagiah. Under the Hindu Succession Act therefore it is the widow who would inherit Nagiah, after his death. It may be that at the time of' his death, the widow was not in actual physical possession of the property left by the deceased. That does not deprive her from inheriting Nagiah. If the plaintiffs are found to be in possession after the death of Nagiah, their possession would be that of trespassers. They have no basis to remain in possession. When once the will is removed from consideration there is no other foundation on the basis of which the 2nd plaintiff can claim her title or sustain her possession. The widow therefore, under section 14 would be deemed to have been in possession because she could have recovered possession from the plaintiffs who are trespassers. It is the widow therefore, who gets the absolute right under the Hindu Succession Act. The 2nd plaintiff has no right as far as the suit property is concerned. The widow is entitled to get possession from tile 2nd plaintiff. It is she who would be deemed to be in possession of the properties under Section 14. This view finds support from a decision of the Supreme Court in Kotturuswami v. Veeravva. : AIR1959SC577 . Their Lordships of the Supreme Court said:
'The word 'possessed in Section 14 is used in a broad sense and in the context means thestate of owning or having in one's hand or power.'
Thus the opening words 'property possessed by a female Hindu' obviously means that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word 'possession' in the widest connotation, when the Act came into force, the section would not apply.'
I do not therefore, think that the petitions to amend the plaint are tenable in law or any purpose would be served in admitting the same. I would therefore reject those petitions.
24. For all the reasons which I have endeavoured to give, the second appeal fails andis dismissed with costs. No leave.