M. Natesan, J.
1. The substantial question that arises for consideration in this second appeal is about the genuineness and validity of the testamentary document Exhibit A-20 dated nth October, 1960, put forward as the last will and testament of one Kuppan Chettiar who died on 14th October, 1960.
2. The plaintiffs have filed the suit as executors appointed under the said will for rendition of accounts by the defendants of his agency of the deceased Kuppan Chettiar's firm in Ipoh. The 1st plaintiff is the wife and the 2nd a daughter of Kuppan Chettiar and the third plaintiff is a stranger to the family. The defendant is the brother of the deceased. He questioned the capacity of the plaintiffs to institute the suit, challenging the genuineness of the will. He set up another will executed by the deceased on 13th March, 1959 at Ipoh, a copy of which is Exhibit B 5. The learned District Munsif of Devakottai accepted the genuineness and validity of Exhibit A-20 and decreed the suit for accounts for the period 27th May, 1952 to 14th October, 1960, the date of the death of Kuppan Chettiar. On appeal by the defendant, the learned Subordinate Judge of Devakottai, while withholding the consideration of the validity of the earlier will Exhibit B-5, found against the validity of Exhibit A-20. As regards accountability, he held that the defendant was liable to render accounts from 23rd April, 1959 only but till date and not upto 14th. October, 1960 alone, accepting the cross-objections filed by the plaintiffs as regards the accounts for the later period. But on his finding on Exhibit A-20, the suit failed.
3. In this second appeal by the plaintiffs though the period of accountability has also been the subject of discussion, it is the validity of the will that has to be first determined and is the main question. The deceased Kuppan Chettiar was the eldest of three brothers, the next being the defendant Narayanan Chettiar. The third brother is Sethuraman Chettiar. The brothers became divided in 1952. Prior to the disputed will under consideration and the will evidenced by Exhibit B-5 referred to above, there was another will Exhibit A-3. Under Exhibit A-3 besides the plaintiffs the defendant also was appointed an executor and though the validity of Exhibits A-3 was never examined and even the other will Exhibit B-5 cancelled all the earlier wills, specifically referring also to Exhibit A-3, the learned Subordinate Judge would hold that Exhibit A-20 not being valid, Exhibit A-3 came into operation and that therefore the suit was not maintainable.
4. I may at the outset say that the discussion of the learned Subordinate Judge on the validity of Exhibit A-20 is far from satisfactory. It suffers from serious infirmities that vitiate the ultimate finding. In view of the order I now propose to pass in the matter, which I, in a way, indicated at the close of the argument. I shall not be going deep into the details of the case except to the extent necessitated for bringing out the infirmities in the approach.
5. As stated at the outset, the deceased who was separated from his brothers in 1952 had no male issue. He had four daughters. Paripoorna Achi the eldest,. Chittal Achi, next, then Annapoorani and then Sivakami Achi. Paripoorna Achi, the eldest daughter, had a son and daughters. Her second daughter Kalyani is married to the defendant's son Ramanathan and the defendant by his son Ramanathan has four sons Vaidyanathan, Muthukumaran, Kuppan and another. The second plaintiff Chittal Achi has no issue. Sethuraman the last brother of the deceased has a son by name Aiunachalam. The deceased had a concubine by name Kannammal in Malaya and through her he had three sons. The wife of the deceased, namely, the 1st plaintiff in the suit has been a helpless invalid for over 15 years and had to be fed and looked after. The deceased who was suffering from high blood pressure when in Malaya had to enter hospital in Ipoh on 26th February, 1959 where he stayed for about 15 to 20 days. It is stated that his leg was affected a little and there were twitches in his face. After this attack, the deceased was anxious 'to return to India. There is some record regarding sale of his share in the business house to Vaidyanatha, the defendant's grandson, by his father and guardian Ramanathan. The evidence is that on 13th March, 1959 the deceased executed a will in the hospital at Ipoh, a copy of which is Exhibit B-5 above referred to. Later, on 21st March, 1959 the deceased accompanied by the defendant returned to India by plane and reached his village Amaravathiputhur by the car of the 3rd plaintiff. The deceased stayed right through at Amaravathiputhur till his death on 14th 'October, 1960. The defendant returned back to Malaya and Egammal Achi, the mother of the brothers, who was in the village died in Thai 1960. The deceased alone was then in India both of his brothers being at Malaya. The defendant who was admittedly managing the business of the deceased returned back to India in September, 1960, handing over the management of the business of the deceased to D.W. 7, son of Nagammai Achi. The house of the defendant was four houses off from the place where the deceased was living and the defendant stayed in India at the time of the death of his brother and thereafter for a time for his own sixty first birthday celebration which was on the 16th day of the death of Kuppan Chettiar. The will in dispute Exhibit A-20 was actually executed on nth October, 1960. 'The scribe of the document is P.W. 3 a resident at Karaikudi, who is stated to be a well established document writer of the locality. The instrument has been typed by him. He received instructions from the deceased for the will, two days prior to the date of execution. He was fetched for the purpose by the and plaintiff Chittal Achi the daughter, who was given evidence as P.W. 6.
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6. The requirements for a valid will are well established and have been repeatedly laid down in decision after decision. The first requisite for a valid will is, the tesator must have known and approved the contents of the will. Whenever a will is prepared under circumstances which give reasonable room for suspicion that it does not express the mind of the testator, it is for those who put forward the will to remove the suspicion. It has also been laid down that when a will is prepared by or on the instructions of a person taking a benefit under, or a person getting substantial interest under the will takes a prominent part in the preparation of the will, it is a circumstance raising suspicion. When the benefit is large, the burden of proving the authenticity of the will be heavy. But if the will is to be invalidated notwithstanding the discharge of the burden there must be evidence of the actual exercise of undue influence. In ' Theobald on Wills ' Twelfth Edition, at page 33 it is set out thus:
the influence of a person standing in a fiduciary relation to the testator may lawfully be exercised to obtain a will or legacy, so long as the testator thoroughly understands what he is doing and is a free agent; and the burden of proof of undue influence lies upon those who asserts it.
The learned author observes at page 34 therein:
In the case of wills, when once it is proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence rests on the party who alleges this.
To establish a case of undue influence, it must be shown that fraud or coercion has been practised on the testator in relation to the will itself, not merely in relation to other matters or transactions. A case of undue influence is more easily established where there is evidence to show that the person influenced was of feeble mental capacity or in a weak state of health.
7. The following passage in the said book is of considerable importance in the context of the present case.
A will which has been read over to the testator in a proper manner, or the contents of which have been brought to his notice before execution, must, in the absence of fraud, or coercion, be presumed to have been approved by him.
8. It will be useful also to refer here to some of the decisions placed before me by Counsel.
9. In Mt. Gomtibai v. Kanchiedilal (1949) 2 M.L.J. 469, the Judicial Committee set out the legal position thus:
The law is well settled that the onus probandi lies on the person who propounds the will, and this onus is in general discharged by proof of capacity, and the fact of execution, from which the knowledge and the assent to its contents by the testator will be assumed ; Barry v. Butlin (1838) 2 MPC. 480. But where a will is prepared and executed under circumstances which excite the suspicion of the Court:It is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document'. Tyrrell v. Painton L.R. (1894) P. 151.
See also Charles Harwood v. Baker (1840) 3 M.P.C. 282:
Where once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent,
that is, when the propounder of the will has discharged the onus:
the burden of proving that it was executed under undue influence is on the party who alleges it. Boyse v. Rossborough (1857) 6 H.L.C. 2 : 26 L.J. Ch. 256.
In the case just cited, it is also stated that:
influence in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will must be an influence exercised either by coercion or by fraud.
To the same effect is the statement in the earlier case, Barry v. Butlin (1838) 2 MPC. 480.
The undue influence and the importunity which, if they are to defeat a will must be of the nature of fraud or duress.
As observed in Craig v. Lamoureux L.R. (1920) A.C. 349, the burden of proving undue influence is not discharged by merely establishing:
that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained.
10. While the burden on the propounder of the will is to show that the testator executed the will in his right mind and with disposing mental capacity, the caveator to succeed and have the will thrown out should establish that the will was executed under undue influence and the evidence in regard to this must be of the exercise of influence either by coercion or by fraud. Mere persuasion and importunity which do not unduly overbear the will of the tesator would not be undue influence that would vitiate the will.
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11. The case of the plaintiffs in regard to the execution of the will must be considered in the light of the defendant's case that the testator was wholly unconscious and that the will is a fabrication. That it is a result of undue influence and coercion is only a later development, emphasised at the appeal stage.
12. In Bur Singh v. Uttam Singh I.L.R. (1911) Cal. 355, where the question was as to the capacity of a testator and it was alleged that undue influence had been exercised over him in the matter of execution while he was admittedly seriously ill, though the evidence was to the effect that he was in possession of his senses and understood what he was doing when he signed the will, the Judicial Committee remarked:
The onus of proving the testamentary capacity of Ship Singh of course lies on those by whom the will is propounded, and in their Lordships' opinion they have discharged that obligation by the evidence indicated above. Such evidence is not displaced by mere proof of serious illness and of general intemperance, and yet that is as far as the evidence of the respondents can fairly be said to go. So far as the charge of undue influence is concerned, all that is shown on the part of those attacking the will is that there was motive and opportunity for the exercise of such influence by the defendants, and that some of them in fact benefited by the will to the exclusion of other relatives of equal or nearer degree. Circumstances of that character may sometimes suggest suspicion, and would certainly lead the Court in the present case to scrutinise with special care the evidence of those who propound the will; but in order to set it aside there must be clear evidence that the undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.
13. I should say that having regard to the evidence of the doctor and the Notary public and the other evidence in the instant case regarding the state of mind of the testator, there has not been hat examination of the defendant's case of exercise of influence in this case as is required in the passage above cited for invalidating the will.
14. The reasoning of the learned Subordinate Judge leaves the impression that the testator at the time of execution must have felt that he had no option but to put the thumb impression on the paper produced, that is he was cowed down by the presence of P.W. 6 and her husband. The execution of the will is not a hole and corner* affair. Respectable parties were on the scene at the execution. Dr. Subramaniam P.W. 2, affirms that the testator understood what was read over to him and that P.W. i the Notary Public and Advocate asked him whether he had understood the full implication of the trams in Exhibit A-20 and that the testator replied in the affirmative. Is it a case of the deceased always at the tender mercies of P.W. 6 and her husband, who had been subjected to prior pressure fearing future persecution at their hands executing the will in their presence in accordance with their prior dictates, no doubt in the presence of disinterested witnesses? There is no suggestion in the evidence that none else than P.W. 6 and her husband had access to the deceased, during the relevant period. It is nobody's case that he was kept confined, his relatives and friends being shut off from all discourse with him. The defendant's house was only four houses away from the old joint family house in which the deceased was residing at the relevant period. The entire case of the defendant has been that the deceased was unconscious for 2 weeks before his death. He would state that he was with him when he expired. He admits that he had gone to see the deceased sometimes and would state that he never saw P.W. 1 and 3 in the house ; the eldest daughter of the deceased was also living in the same village and in the same street and it has been elicited in the cross-examination of P.W. 6 that at times she used to come and call on the father and she was not inimical either to P.W. 6 or to the father, though she was not very much attached to her parents.
15. To start with, the disposition in Exhibit A-20 in favour of P.W. 6 in the context of the facts as revealed by the evidence is nothing unnatural; nor is it too large a gift. By itself it cannot lead to any inference of undue influence on the part of P.W. 6. It need not appear strange, if the natural affections to one's own children and wife had asserted themselves and a special provision was made to one of the daughters, having regard to the fact that she had been attending on the father and being issueless may be expected to attend also on his invalid wife. She was living in the adjoining premises. Certainly the provisions by themselves do not suggest that unless there was coercion and undue influence such provisions would not have been made. Assuming that P.W. 6 had persuaded her father to make the life interest an absolute one, will that be undue influence? Certainly not. But to justify the decision of the learned Subordinate Judge that there was undue influence in this case, one has to hold that is so, for there is no evidence in this case to warrant an inference of undue influence, apart from the fact that there is no such plea.
16. In Naresh Charan v. Paresh Charan , where a son was practically disinherited and his children altogether ignored, the Supreme Court, after observing in the context of the fact of that case that the terms of the will cannot be relied upon as extrinsic evidence of undue influence, observes:
Stripped of all its embellishments, the evidence of Indira, if true, comes only to this that the first respondent told his father that he could not live under the same roof with his brother, and that in view of that attitude, the testator gave no share to the appellant in the house. We are unable to see any undue influence in this. The first respondent was entitled to put forward his views in the matter, and so long as the ultimate decision lay with the testator and his mental capacity was unimpaired, there can be no question of undue influence.
It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as ' undue '. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion, it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories-the will cannot be attacked on the ground of undue influence.
17. Their Lordships quote with approval the following passage from Hall v. Hall (1932) L.R. 1 P. & D. 481.
But all influence are not unlawful, persuasion, appeal to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like--those are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to over power the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet or of escaping from distress of mind or social discomfort--these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven, and his will must be the offspring of his own volition, and not the record of some one else.
18. In this case, at the most, one may suggest that P.W. 6 the daughter who was attending on the deceased might have persuaded her father to leave the land and house to her absolutely. It may also be said that she would have suggested that the wife should be given an equal share in the Indian assets, whatever the ultimate motive may be. But, can any element of fraud or coercion be brought in here? As I said earlier, there has been no suggestion of it. Nor is there any suggestion of restraint compelling him to particular bequests, and requiring him to give up his ideas of adoption. The only suggestion in cross examination of P.W. 6 that may have some relation to the question under consideration is the following:
It is not true that to defraud the grandson of defendant of his interest the properties of my father, we have all conspired together and brought into existence the will Exhibit A-20.
19. Once it is found that the mental faculties of the testator were not affected, in the absence of proof that P.W. 6 did say or do anything, which would restrain the free exercise by the testator of his volition, the theory of undue influence cannot be sustained. The evidence does not disclose any specific act showing the exercise of undue influence. I am not discussing here certain other changes in the disputed will from the earlier wills, as their consideration, in the light of my above discussion, cannot advance the case of the defendant any further. They are deferred for the present.
20. The learned Counsel for the defendant submits that even if the burden is on the defendant to establish undue influence, fraud or coercion and he has failed to establish the same, that does not necessarily result in upholding the will, when there are suspicious circumstances relating to the execution and the evidence, though not sufficient to warrant a positive finding of undue influence, fraud or coercion, may be such as to leave in the mind of the Court a doubt as to the truth of the will. It is pointed out that the Court is not bound to pronounce for the will till the conscience of the Court was satisfied and the doubts and suspicions cleared up. Reference is made to the well known passage in Venkatachala v. S. N. Thimmaiamma , where among illustrations of the circumstances surrounding the execution of a will which may be considered as suspicious are found circumstances when 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. Referring to the suspicious circumstances it is said:
In such cases 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. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily 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 cavestors; 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.
21. But in this case the rejection of the will rests substantially on the plea of undue Influence. The lower appellate Court does not say that the will has not been proved. It goes further and finds that it has been executed by the exercise of undue influence by P.W.6. It is as a consequence of this positive finding the learned Subordinate Judge would hold that it was not executed by the testator in a sound disposing state of mind. It cannot be, on the judgment, said that if the finding of undue influence cannot be sustained, the ultimate decision would have still been the same. This is not even a case where the evidence only falls short of proof of undue influence while giving reason for the gravest suspicion of the exercise of undue influence. As I said at the outset, there has been an erroneous approach in the matter. The learned Subordinate Judge has mixed the enquiry into the sound state of mind and the question of undue influence and also overlooked that even if influence can be suspected, all influence would not be undue. True the Court may, if it doubts the competence of the testator, having regard to the surrounding circumstances, find against the will notwithstanding the fact that the caveator has failed to establish his positive case of unconsciousness for a period of two weeks prior to death. There again, the decision will have to be having regard to the surrounding circumstances. A caveator may have absolutely no knowledge of the testators health or mind and may be away from the scene. Another may contend that he had been on the scene and was with the testator right through and admittedly he might have had opportunities to visit the testator. All these factors will have to weigh in the determination of the issue involved. In William Baker v. James Batt (1838) 2 M.P.C. 317, it is observed by Baron Parke:
In a Court of probate, where the onus probandi mostly undoubtedly lies upon the party propounding the will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied, that the paper in question does contain the last will and testament of the deceased, it is bound to pronounce its opinion that the instrument is not entitled to probate. And it may frequently happen that this may be the result of an enquiry in case of doubtful competence in particular, without the imputation of wilful perjury on either side; or it may be, the judge may not be satisfied on which side the perjury is committed, or whether it certainly exists.
22. As regards the disposing state of mind required of a testator, the Counsel referred me to Re-Belliss : Poison V. Parrott (1929) 141 L.T. 215, where at page 248 is found the following passage:
The Judgment of the Privy Council in Harwood v. Baker (1840)3 M.P.C. 282, illustrated the mode in which the test of memory is applicable. It was a case where there had been exclusion of a relative, and the decisive question was formulated thus : ' Was the testator capable of recollecting who (his) relations were, of understanding their respective claims upon his regard and bounty and of deliberately forming an intelligent purpose of excluding them from any share in is property.' The Court of King's Bench in Banks v. Goodfellow (1870) L R. 5 Q.B. 549 ; 22 L.T.R. 813, dealt both with cases of exclusion and of defective memory, and laid down the principle in the form in which it has since been applied. There are two passages from the Judgment : 'Though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testatmentary act in its different bearing the power to make a will remains.'
' The standard of capacity is the capacity on the part of the testator to comprehend the extent of the property to be disposed of and the nature of the claim of those he is excluding.'
Citing with approval an American Authority the Court adopted these additional illustrative statements. ' By sound and disposing mind and memory it has not been understood that a testator must possess those qualities of the mind in the highest degree....neither that he must possess them in as great a degree as he may formerly have done; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled and yet there may be enough left clearly to discern and discreetly to judge of all those things and all those circumstances which enter into the nature of a rational, fair and just testament.'
In every day practice in probate cases, then, what is sought to be ascertained is; was the testator possessed of the degree of power in mind, memory and understanding which were needful for doing rationally what was in fact done.
23. The abovesaid passage, in my view, gives the test on which this case should be decided. Was the testator in this case possessed of that comprehension to judge whether the dispositions which he was making were fair in the circumstances in which he was placed and having regard to the claims of his bounty and his obligations. It is sufficient for him to possess that degree of understanding to judge the fairness in his own way and we cannot substitute our views of fairness. It is open to him to choose, who would be the object of his bounty and he may even disinherit whomsoever he pleases. He is the master of his properties and if, with sufficient intelligence to understand and appreciate that he was disposing of his properties once and for all and he would not be there to rectify, when the testament comes into effect, he makes his dispositions, prima facie the dispositions may not be open to question.
24. In Harwood v. Baker (1840) 3 M.P.C. 382 : 50 R.R. 37, where a will was executed by a testator on his deathbed in favour of his wife, to the exclusion of the other members of his family, the testator being of a weakened and impaired capacity at the time of the factum, it is said, while discussing, what would constitute the sound disposing mind:..in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.
If he had not the capacity required the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the dispositions, though the justice or injustice might cast some light upon the question as to his capacity.
25. I must here point out that in a case particularly like the one under consideration what the effect would be in the absence of a testament may also be considered. If the effect of the testament is to provide also for some one, who has claims on the testator and who would not otherwise inherit the estate if the testator should die intestate or make equitable distribution of his estate amongst the heirs according to their needs or his obligations and the will is rational in its face and fair in its dispositions making just adjustments in the devolution of the estate it is a matter which will speak in favour of the will. After setting out the test in the case cited above, the manner of approaching the evidence is set out thus:
Keeping, therefore, in mind the principle, that in all cases, the party propounding the will is bound to prove, to the satisfaction of the Court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him, when the evidence in the case shows that the mind of the testator was generally, about the time of its execution, incompetent to the exertion required for such a purpose; and further keeping in mind that the disposition in question was not in accordance with any purpose deliberately formed before his mind became enfeebled by disease,--we come to the examination of the witnesses, whose evidence is relied on as proving, that at the time of executing the will in question he was fully competent to form, and. did deliberately form, the intention of leaving to his wife the whole of his property....
26. That is, does the evidence show that the testator at the time of the execution of the will did deliberately form the intention of making the dispositions ass found in the will?
27. Mr. Sundaram Ayyar, for the respondent, referred to Rani Pumima Devi v. Kumar Khagendra Narayan Deb , and submitted that even where there are no allegations of undue influence fraud or coercion, it is the circumstances attending the execution of the will in this case that give rise to the doubt and it is for the propounder of the will to satisfy the conscience of the Court. My attention was also drawn by the learned Counsel to Surendra Nath v. Jnanendranath , which the learned Subordinate Judge has relied upon. The learned Counsel emphasised, that it was a registered will that was found against them. But that case can have no bearing with reference to the context of the present case. The doctor who had been attending on the testatrix in that case was examined on behalf of the caveator. Under the will in question in that case the propounder who had been looking after and attending on the testatrix received the largest share of the benefit. The Court remarked that as regards the mental capacity of the testatrix, the first and foremost witness should have been the doctor under whose treatment the testatrix was. But that doctor spoke for the caveator.
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28. The evidence regarding the execution of the will is that the dispositions were agreeable to the testator's own wishes. The requirement as to the production of the draft is not a rule of thumb for establishing the validity of wills. It depends upon the circumstances.
29. I have dealt only with a few of the suspicious circumstances which have in a way influenced the learned Subordinate Judge in coming to his conclusion that there is undue influence in the matter. As the lower appellate Court has not considered the case from the other angle, namely, whether, notwithstanding the absence of proof of undue influence by the objector, there are suspicious circumstances clouding the execution, which call for examination, I propose to leave it to the lower appellate Court to consider whether it could be said that the testator fully conscious of the nature of the dispositions he was making, executed the will and whether there are any reasonable and leigitimate doubts in regard to the execution that call for explanation. The circumstances on which undue influence was founded by the Subordinate Judge may in part be evidence for the plea of absence of a sound disposing state of mind. While evidence not sufficient for an inference that the testator was not of sound mind, would not be sufficient to prove undue influence, in the reverse, it may not always be so. To a certain extent the discussion may overlap. But the question will have to be examined separately. It is needless to state, as pointed out by the Supreme Court, that as in the case of proving all other documents so in the case of proving of wills, it would be idle to expect proof with mathematical certainty. But if the judicial mind is not satisfied, and is doubtful if the whole truth has come out, when it feels that there must be perjury on one side or the other and on which side the perjury is committed, and the competence of the testator is doubtful, it may hold that the will has not been proved. The test to be applied is the usual test of satisfaction of the prudent mind in such matters. No doubt, as the testator is not there to affirm or deny whether he made the dispositions as presented in the will, an element of solemnity is introduced, in the matter. Herein comes the phrase taken from Ecclesiastical Law ' satisfaction of the conscience of the Court.' But the very solemnity of the proceedings requires having regard to the fact that the enactment is no more there to state one way or the other, that the Court should not also lightly strike down a will, fair and rational on its face and proved to have been duly signed by the testator in the presence of attesting witnesses, when apparently in sound disposing state of mind. As observed by Lord Du Pareq in Earmes v. Hinkson A.I.R. 1946 P.C. 156 : (1946) 2 M.L.J. 156.
Those rules enjoin a reasonable scepticism not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth.
30. The fact that it is said ' conscience ' has to function in the matter should not make the Court hesitant, to probe deeper into the matter for discovering the truth, where necessary. Conscience has to function whether it is finding for or against the will.
31. It follows that the finding of the learned Subordinate Judge on the will as it stands cannot be sustained. His finding that the will is vitiated by the exercise of undue influence by P.W. 6 is not in accordance with law and is untenable. The validity of the will has to be considered de hors, the finding of undue influence which is a separate matter, in the light of the principles enuniciated. Whether after the finding against undue influence there are left legitimate doubts which call upon the Court to be vigilant and zealous in the examination of the evidence in support of the will and whether the conscience of the Court in this regard is satisfied are in the end questions of fact. I prefer to have a fresh consideration of the same by the lower appellate Court. I am therefore sending down the matter for a fresh finding by the lower appellate Corut on the question whether the plaintiffs have proved that the will Exhibit A-20 dated 11th October, 1969 is the last will and testament of Kuppan Chettiar executed by him when he was in a sound disposing state of mind? The learned Subordinate Judge will freely deal with the matter on the merits, except in regard to the features which have been examined by me and specific findings given. No fresh evidence. The question as to the period of accountability will be taken up after receipt of the finding.
32. Time for submission of finding eight weeks from the date of receipt of the records by the lower appellate Court.. Objections, if any, to the finding 10 days after submission of the findings.
After the return of the finding the Court delivered the following:
33. The learned Subordinate Judge has returned his finding that the testator was possessed of a sound state of mind at the time he executed the will, Exhibit A-20, that he knew as to what he was doing at that time he executed the will, possessed that degree of power of mind ,memory and doing was able to discern and the valid execution of the will. No objections have been filed to this finding by the respondents in the appeal and quite properly as the learned to this finding by the has considered every material aspect and piece of evidence subordinate Judge sent to him for determination, in the light of establishment principles, and the finding has moved into the realm of pure fact.
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34. The learned Subordinate Judge in the first instance dismissed the suit in its entirety on his finding that the will Exhibit A-20 was not valid. As that finding is now found to be erroneous, the plaintiffs' right to claim accounts from the first defendant has been established and the decree for accounting has to follow.
35. In the result , the decree of the trial Court providing for the first defendant to render accounts of his agency of the deceased Kuppan Chettiar's firm at Ipoh is restored, subject to the modification, the liability to account shall be from April, 1958 and up-to-date. The Second appeal is allowed according decree and the judgment of the lower appellate Court being set aside. The parties will bear their respective costs throughout. The executors may have their costs parties throughout from the estate. No leave.