1. This is an appeal against the judgment of Yahya Ali. J, dismissing a suit brought by the appellant for grant of letters of administration with the will of the deceased K.V. Balakrishnamurthy annexed. She is the widow of the testator. The caveator, the defendant in the suit and the respondent herein is the uterine brother of the deceased. The appellant alleged that her husband Balakrishnamurthi duly executed on 4-8-1947 the will in respect of which letters of administration were sought. He died on 6-8-1947.
The defendant pleaded that when the will was executed by him Balakrishnamurthy was not in a sound and disposing state of mind and in any event the will was executed under coercion and undue influence exercised on the testator by his father-in-law, one Dr. G. Venkatarao. In addition to these pleas which are strictly germane to a testamentary suit, the defendant also pleaded that the deceased was an undivided member of a joint family along with the defendant when he executed the Will and when he died and that therefore it was not valid and binding as the deceased had no power to dispose of joint family properties. The following issues were framed on the pleadings.
1 Was the Will dated 4-8-1947 executed by late Kathirisetli Venkala Balakrishnn-murthi while in a sound disposing state of mind?
2. Was the Will, dated 4-8-1947, executed by late K.V. Balakrishnamurthi under coercion and undue influence exercised by his father-in-law?
3. Was the deceased not divided in status from the other members of his family at the time when he executed the will and when he died?
Though a determination of the third issue was not necessary for the grant of the relief prayed for by the plaintiff, yet both the parties went to trial on the issue and the learned Judge has given his finding on that issue as well.
2. The learned Judge found in favour of the plaintiff on both issues 1 and 2. Ordinarily, on these findings, the suit should have been decreed. But the learned Judge found against the plaintiff on issue 3 on the ground that the deceased was not divided in status from the defendant at the time when he executed the will and therefore the will was not valid and binding on the defendant. In the result, he dismissed the suit, though the learned Judge felt constrained to observe that the result was by no means satisfactory. The plaintiff appeals against the dismissal of her suit.
3. The learned counsel for the respondent challenged the findings of fact arrived at by the learned trial Judge and sought to support the dismissal of the suit on the grounds on which the trial Judge had held against him. The appellant's counsel besides supporting the findings of the learned Judge on the facts attacked the correctness of the learned Judge's finding on issue 3. It is convenient first to take up issues 1 and 2 together.
4. The deceased Balakrishnamurthi was the son of one Venkatanarasayya by his second wife Kesavanarayanamma. By his first wife he had a son and a daughter. The daughter was married to one Dr. G. Venkatarao and the plaintiff is their daughter. She was married to Balakrishnamurthi on 22-11-1945. Venkatanarayya died in 1934 leaving behind him a will dated 5-1-1934. He bequeathed a third share in the family properties to his second wife, the-mother of the deceased and the defendant.
5. The deceased Balakrishnamurthi was a Bachelor of Engineering and was employed at the time of his death as Supervisor in the Sanitary Engineer's Office at Madras, after having served in various other places. His, was transferred to Madras in July 1947 but was unable to secure a house and was therefore compelled to put up with a friend. His wife was staying with her father Venkatarao at Chicacole (Sri-kakulam). He appears to have been given a quinine injection, it is not clear for what disease, and he developed an abscess at the place where he was injected. Unfortunately tetanus also set in; symptoms became very acute on 1-8-1947 and he was therefore admitted as an inpatient into the General Hospital, Madras on that day. In spite of large doses of ante-tetanus serum administered to him, he did not improve. He had lockjaw and abdominal rigidity on 2nd August. He was given parel-dehyde and chloral bromide by the rectum. In spite of the treatment and though he appears to have been in a better condition on the 5th, he never rallied and finally he expired at 11-30 a.m. on 6-8-1947.
6. The Will in dispute was executed on 4-8-1947 at the General Hospital. It was a short Will and its operative portion runs as follows:
"I hereby declare my intention to get separated from brother Venkatasivaprasada Rao. 1 bequeath all my movable properties including cash and monies in banks, insurance policies, all immovable properties belonging to my share, out of love and affection to my wife Indira Bai absolutely.
I hereby authorise my wife to adopt any boy of her choice to perpetuate my line.
I reserve to myself the power to cancel this Will."
The Will is in the handwriting of an Advocate of this Court, Mr. M.S. Ramachandra Rao. It was attested by Major Reddi, Civil Assistant Surgeon, Government General Hospital on duty, K. Kesava Rao, Dy, Commercial Tax Officer, Madras, N. Prakasa Rao, House Surgeon.Gene-ral Hospital, Madras and another advocate Mr. G. Balaparameshwari Rao. The will contains both the signature and the thumb impression of the testator. The signature and the thumb impression ore not disputed and it was not alleged that there was no proper attestation. The defendant's case was that on account of the feeble physical state to which the testator was reduced at the material time, he was not in a sound disposing state of mind and it was also-possible for his father-in-law G. Venkatarao to exercise coercion and undue influence on him to make him execute the Will.
7. On behalf of the plaintiff the two advocates, namely, the writer and attestor, two of the other attestors Mr. K. Kesava Rao and Major Reddi and Dr. G. Venkata Rao, the father of the plaintiff, were examined, besides the plaintiff herself who gave evidence. On behalf of the defendant, one of the attestors Dr. Prakasa Rao and one Narasamma who is alleged to have been the testator the day next after the execution of the Will along with the testator's mother and Mr. Ramamurthi (handwriting expert) were examined in Court and the evidence of the mother of the deceased and one Mr. Prabhakara Rao Nayudu, then Collector and Magistrate of Guntur was taken on commission.
The learned counsel for the respondent did not impeach the veracity of the two Advocates nor of Major Reddi, though he pointed out discrepancies between their version as to what happened on the 4th and the version as deposed to by Kesava Rao and Venkata Rao. So far as the issue relating to sound disposing state of mind is concerned, the onus will be on the plaintiff, while it is equally clear that the onus of establishing coercion and undue influence would lie heavily on the defendant.
8. We have no hesitation in concurring in the finding of the learned trial Judge that the will was executed by Balakrishnamurthi while in a sound disposing state of mind. We are-equally in agreement with his finding on the plea of undue influence and coercion. The learned counsel did not keep the two questions as entirely separate in canvassing the evidence. The learned Judge had the great advantage of watching the witnesses) such of those who were examined in court, while giving evidence and noting their demeanour and we see no reason not to accept the finding arrived at by him on a consideration of the entire evidence. (His Lordship upheld the findings of the lower Court on the first two issues after discussing the evidence and proceeded:)
9-12. On the findings on the first two issues the plaintiff appellant would be entitled to the relief for which she prayed, namely, the grant of Letters of Administration with the will annexed. But the third issue was framed on the plea raised by the defendant and the parties went to trial on that. The suit itself has been dismissed, because the learned Judge found against the plaintiff on that issue. We have thought it therefore desirable to deal with it also. For the disposal of this issue, the following facts may be taken as undisputed.
13. The testator and the defendant were members of an undivided family till 4-8-1947. Though an attempt was made at the trial to contend that according to the will of the testator's father made in 1934, there was a division in status between the testator and the defendant this contention was not pressed before us by the appellant's counsel. On the 4th sometime before the execution of the will, the testator signed a telegraph form Ex. P. 3. The telegram was addressed to his brother at Sri-kakulam and ran as follows:
"Hereby declaring my intention separating from you am executing will."
The genuineness of the, signature on the form was disputed by the defendant before the trial Judge, but before us the learned counsel for the defendant accepted the finding of the learned Judge that the testator did sign, the telegraph form. The form itself shows that it was handed in at the Mount Road telegraph office at 3-20 p.m. and that it was signalled from that office at 8-32 p.m. It was an express telegram. In the ordinary course, the telegram should have been delivered at the defendant's address on the 5th. The defendant was given notice to produce the telegram received by him, but he did not produce it. Nor did he go into the box and depose if and when he received it. The will was executed at about 7-30 p.m. The testator died on the 6th morning. On these facts it was contended on behalf of the respondent that though telegraph form might have been signed by the testator before the execution of the will, it was not handed over at the telegraph office till after the execution. The testator had therefore no testamentary capacity at the time when he executed the will, because the intention to separate must be deemed to have been communicated to the defendant at the earliest only when the telegram was handed in at the telegraph office. Mr. Narasaraju for the respondent went further and argued that even the handing in of the telegram was not sufficient, it must be proved when the telegram actually reached the defendant, because it was only then that the intention could be said to have been really communicated.
The learned Judge did not accept the contention on behalf of the plaintiff that handing over the telegram to a messenger which was before the execution of the will amounted to communication and held that the testator must be deemed to have become divided from his brother only after the telegram had been handed in at the telegraph office. As this was after the execution of the will, the learned Judge held that the testator did not possess testamentary capacity at the time of the execution of the will. He therefore felt constrained to hold that the will was invalid and dismissed the suit.
14. With due respect to the learned Judge we have no hesitation in holding that he was in error in his conclusion. The learned Judge was evidently misled by the use of the words "testamentary capacity". He apparently proceeded on the assumption that an undivided Hindu coparcener had no testamentary capacity. This of course is wrong. Section 59 of the Succession Act declares that every person of sound mind not being a minor may dispose of his property by will. An undivided coparcener who is not under any personal disability and who is in a sound disposing state of mind has the capacity to execute a will.
The rules of Hindu law only curtail the po- wers of the testator to affect by will joint family property and do not take away the capacity of the coparcener to make a will. Obviously an undivided coparcener, can validly dispose of his separate property. His status as an undivided coparcener does not prevent him from doing so. Only a member of an undivided family cannot validly bequeath his undivided coparcenary interest in the family properties. It is not a lack of capacity; it is a lack of power to bequeath. In other words, the will cannot affect joint family property. The reason is succinctly stated in a very early Madras case. -- 'Vitla Butten v. Yamenamma', 8 Mad H C Rule 6 thus,
"At the moment of death the right by survivorship is at conflict with the right by devise. Then the title by survivorship, being the prior title, takes precedence to the exclusion of that by devise."
A Will speaks only from the date of the death of the testator. But on the death of an undivided member of a coparcenary his interest survives to the other member or members with the result that the will cannot operate on such interest. In this view the important question to be determined is not. whether a testator was or was not an undivided coparcener at the time of the execution of the will but whether he died a divided or an undivided member of a joint family. If at the time of his death he was undivided member, the will will not have any effect on his undivided share of joint family property, but if he was divided then the will would be valid, and the disposition of his di-vided share would be valid.
The case in -- 'Shib Sabitri Prasad v. Collector of Meerut', 29 All 82 is directly, hi point. In that case one Nanakchand executed a will on 20-1-1885. He died on 16-10-1899. It was admitted that Nanakchand died separate from the rest of his family. It was contended that the will was invalid because he was not divided at the time of the execution of the will. The learned Judges did not accept the contention. Assuming that he was joint at the time of the will, as it was admitted that he was separate when he died, they held that the will must be construed as
"Speaking and taking effect with reference to the state of things in existence immediately before the testator's death, when admittedly he had separated from the members of his family."
In -- 'Bodi v. Venkataswami Naidu', 38 Mad 369, a Hindu, who had no male issue or an undivided coparcener along with him, executed a will which devised ancestral properties to which hg was at that time absolutely entitled as the sole surviving coparcener. But subsequent to the execution of the will, the testator had a son born to him. But the son died shortly after his birth, so that the testator had no son alive at the time of his death. The question was whether the will had been revoked by reason of the death of a son after the execution of a will. It was held that it was not. In discussing the law on the point the learned Judges start with the basic principle that a will is to be understood as speaking at the death of a testator and its validity is to be determined accordingly. They also take it as well settled that even property which a person does not possess at the time of the will may be validly bequeathed. They then say:
"Survivorship has the effect of rendering a will invalid with respect to property which the testator could not dispose of at the time of his death. All other dispositions made by him are valid."
This principle is also illustrated by cases in which it has been held that where a sole surviving coparcener makes a will of ancestral property and subsequently makes an adoption, the will becomes inoperative and by cases in which he has been held that where subsequent to the will a son is born who survives the testator or when a posthumous son is born, the will becomes inoperative so far as joint family property is concerned. See -- 'Krishnamurthi v. Krishnamurthi', 50 Mad 508 (PC) and --'Minakshi v. Virappa', 8 Mad 89.
15. It is therefore clear that if the testator in this case can be said to have died a divided member, then the will would certainly be operative in respect of the divided share of the testator. The fact that at the time of the execution of the will he was not separate would not be material. The learned Judge erred in thinking that the testator should have been a divided member even at the lime of the execution of the will.
16. The learned Judge held that the testator must be deemed to have become divided in status from 8-30 p. m. on the 4th August that is to say, before his death. Mr. Narasaraju for the respondent contended that it is only when the telegram actually reached the defendant that the severance can be held to have taken place and as there was no proof when it reached him, it has not been established that the testator died separate from the defendant. Mr. Narasaraju was unable to cite anyvauthority in support of his contention. On the other hand, the ruling in -- 'Narayana Rao v. Purushotham Rao', ILR (1938) Mad 315 is directly against him.
In that case S and his son were members of a joint Hindu family. On 3-8-1926 S sent to his son a registered notice of his intention to become divided from him. On 4-8-1926 he executed a Will disposing of his share in the Joint family property in favour of a stranger and died on 5-8-1926. The notice was in fact received by the son on 9-8-1926, i.e., after the death of S. It was contended that the division in status arose only on the 9th when the son received the notice and as S had died on the 5th, the estate had passed by survivorship to his son and the will was therefore not valid. It was held by Varadachariar and King JJ. that the issue of the notice was sufficient to prevent the operation of the principle of survivorship and the will was valid. Varadachariar J. who delivered the judgment of the Bench observed at page 318:
"It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners."
In that case the testator was certainly justified in expecting that in the ordinary course his notice would have been delivered to his son on the 4th or at least on the 5th and the testator died on the 5th. In these circumstances it was held that the issue of the notice was sufficient to bring about a separation in status. In the case before us the telegram was despatched on the 4th evening and in the ordinary course it must have been delivered on the 5th and the testator died only on the 6th morning.
17. In this view, it is unnecessary to call in aid the dictum of Viswanatha Sastri J. in --'Katheesumma v. Beechu', 1949-2 Mad L J 268 that once there is a clear unequivocal and unambiguous declaration of an intention to become divided on the part of a member of a joint Hindu family, there would be forthwith a severance in status and the despatch to or the receipt by the other member of the family of a communication or notice showing the intention to divide on his part is not essential nor its absence fatal to a severance in status. The testator in this case must be held to have died divided from his brother (the defendant) and therefore the will was valid and operative in respect of his share of the joint family property.
18. In the result the appeal is allowed and the suit decreed with costs of the trial and the appeal. Advocate's fee in the trial Court Rs. 1000, here in appeal Rs. 750.