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Venkata Ragavulu Reddiar and anr. Vs. Baggiammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in14Ind.Cas.550
AppellantVenkata Ragavulu Reddiar and anr.
RespondentBaggiammal and ors.
Cases ReferredPerera v. Perera
Excerpt:
will - sound disposing mind of testator--instructions given by testator prior to execution--preparation of will acceding to instructions--testator's knowledge that it was according to instructions--validity. - - these being the circumstances in which the will is made, it is necessary to examine very carefully the evidence which has been adduced in sap-port of the will, and unless we are satisfied that the will was, in fact, the will of the deceased, made by him as a free agent, notwithstanding that it was the outcome of suggestions made to him during his last illness by parties purporting to act in the interests of his widow, it cannot, of course, be admitted to probate. in cross-examination, he stated that on the 18th of june he thought the deceased made himself intelligible when he.....arnold white, c.j.1. this is an appeal from the decree of the district judge of chingleput refusing to grant probate of a will. the will is propounded by the three executors, two of whom are the brothers-in-law of the deceased, having married his two sisters. one of the brothers-in-law, ramanjulu, joined with the other executors in applying for probate of the will in the court below, but he has not appealed against the decree refusing probate. probate is opposed by the widow of the deceased and by two illegitimate sons of the deceased. the deceased left him surviving his widow, the daughter of one subba naidu, a retired post-master in madras', a sister who married ramanjulu, one of the executors who has a son, appavu, and another sister who married another of the executors, ramaswami.....
Judgment:

Arnold White, C.J.

1. This is an appeal from the decree of the District Judge of Chingleput refusing to grant Probate of a Will. The Will is propounded by the three executors, two of whom are the brothers-in-law of the deceased, having married his two sisters. One of the brothers-in-law, Ramanjulu, joined with the other executors in applying for Probate of the Will in the Court below, but he has not appealed against the decree refusing Probate. Probate is opposed by the widow of the deceased and by two illegitimate sons of the deceased. The deceased left him surviving his widow, the daughter of one Subba Naidu, a retired Post-master in Madras', a sister who married Ramanjulu, one of the executors who has a son, Appavu, and another sister who married another of the executors, Ramaswami Naidu, and he has no family. The Will bears date June the 17th, 1907, but the case for the plaintiff is that it was not executed until June, the 18th. The deceased died on June, the 19th. He had been suffering from some urinary complaint for some years prior to his death and his last illness began about the 6th June 1907. The case for the plaintiffs who propounded the Will is that he was of sound disposing mind on June, the 18th, when the Will is said to have been executed and that even in the view he was not of sound disposing mind on that date, he was capable of making a Will on June the 14th, that he on that date gave instructions for the preparation of a Will, and that the document, which was put before him on June 18th embodies those instructions and that the deceased understood this. It is the plaintiffs' case that the Will was brought into existence as a result of a considerable amount of persuasion bi ought to bear upon the deceased by some of his friends at the instance of the, deceased's father-in-law, Subba Naidu. The deceased had made a Will, which had been registered, in March 1905. By that Will he devised lands in a certain village to his sister, the wife of Ramaswami Naidu, with reversion to Appavu, the son of his other sister. He left the rest of his, property to Appavu Naidu subject to the payment of Rs. 40 a month to his widow. He cancelled certain debts owing to him including a debt due by a dancing girl. According to the plaintiffs' case, Subba Naidu, the 1st defendant's father, was dis-satified with this Will and in April 1907 asked some of the deceased's friends to try and persuade the deceased to make a fresh Will more favourable to his widow. The deceased declined to do this. It is the plaintiffs' case that during the last illness of the deceased, these efforts were renewed, and successfully. Under the Will of which the Probate is now sought, the widow gets a house in Tirumangalam and a village. The sister, Ramaswami Naidu's wife, gets considerable landed porperty and Rs. 10,000 in cash with reversion to Appavu who is residuary devisee and legatee. The provision cancelling the debt due from the dancing girl is not re-produced.

2. Now, there can be no question that the Will which has been propounded by the executors was the outcome of the suggestions made by certain of the witnesses called in support of the Will at the instance of Subba Naidu and in the interest of the widow. The case for the defence is that the Will was really brought into existence at the instance of Ramaswami Naidu and in the interest of himself and his wife, and this is the view which is taken by the District Judge. These being the circumstances in which the Will is made, it is necessary to examine very carefully the evidence which has been adduced in sap-port of the Will, and unless we are satisfied that the Will was, in fact, the Will of the deceased, made by him as a free agent, notwithstanding that it was the outcome of suggestions made to him during his last illness by parties purporting to act in the interests of his widow, it cannot, of course, be admitted to Probate. It is not suggested that the Will was procured by undue influence, but it is clear that the Will cannot be described as a spontaneous act of the deceased.

3. So far as the medical evidence goes, the evidence, if true, is sufficient to establish that the deceased was of a sound disposing mind when he gave his instructions on the 11th of June and that he understood what he was doing when he accepted the document which purported to embody these instructions on the 18th of June. He was attended in his last illness by the Hospital Assistant and by Dr. Phillips an L.R. C.P. and L.R.C.S. of Edinburgh, who was summoned from Madras and who saw him on the l4th and on the 18th June. The Hospital Assistant speaking of the deceased's condition on the 18th stated that he was quite conscious and sensible when he signed the Will and that he was then sitting in his chair, that he was able to give instructions to his clerk and was talking to his friends, that his condition was the fame on the 14th, that his mind was clear and that he was able to speak to his friends and some business people between the 14th and 18th of June. Dr. Phillips deposed that ha visited the deceased on the 14th of June and found him suffering from extravasation of urine, that he suggested an operation, that the deceased had first consented but afterwards changed his mind, that he then left after having been there ab3ut half an hour, that he saw him again in the early morning of June 18th and found him worse, that lie had fever and his pulse was quicker and he was altogether in a worse condition than when he left him on the 14th, that he spoke to the deceased but he did not reply, that he thought the deceased was not pleased with his presence and that was why he did not speak because he spoke to the Hospital Assistant. In cross-examination, he stated that on the 18th of June he thought the deceased made himself intelligible when he spoke to the Hospital Assistant, that he thought the deceased perfectly understood what the Hospital Assistant slid, that he did not think the deceased was unconscious but that he was conscious, that if he had been treated by the witness he might have lived, that he was asked by the Hospital Assistant if it was safe to remove the patient to his village and that the witness told the Hospital Assistant that it was not safe to remove him at that stage. Curiously enough, neither the Hospital Assistant, who was called by the plaintiffs to support the Will, nor Dr. Phillips who was called for the defence was asked directly whether in his opinion the deceased was capable of making' a Will on June the 14,h or on June the 18bh. The District Judge came to the conclusion that the deceased was not of sound disposing mind 'in spite of the evidence of Dr. Phillips and the Hospital Assistant.' The Judge states that Dr. Phillips 'did not give evidence in a straightforward manner and apparently came prepared to speak against the defence'; and as regards the Hospital Assistant, he observes that he was examined on commission and that the note of the District Munsif who examined him shows that he displayed great bias on behalf of the plaintiffs and that his demeanour in the witness-box: was unsatisfactory. So far as the recorded evidence goes, there does not seem anything to warrant the criticism that Dr. Phillips did not give evidence in a straightforward manner. He answered the questions directly and it was not his fault that be was not asked, as he ought to have been asked, whether in his opinion the deceased was of sound disposing mind. The District Judge bases his opinion that the deceased was not of sound disposing mind on the 18th to some extent on the appearance of the so-called signatures which appear at the foot of each sheet of the Will. There can be no question that although the signature on the first sheet possibly bears some remote resemblance to the signature of the deceased, the other signatures are rightly described by the Distract Judge as mere scribles. The District Judge also finds that as regards some of the attesting witnesses, they did not sign the alleged Will on the 18th. From what I have said it is clear that this case is not free from difficulty. Although I am reluctant in a case of this sort to disturb the finding of a Judge who has had the advantage of seeing the witnesses and observing their demeanour, I have come to the conclusion that the evidence adduced in support of the Will is in the main true and that the deceased, even assuming that he was not capable of making a Will on June 18th, was capable of understanding on that day that the document put before him embodied instructions previously given by him. As regards the law in this matter, it was thus laid down by Sir James Hannen in Parker v. Felgate 8 P.D. 171: '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 far. 'I gave my Solicitor instructions to prepare a Will making ascertain disposition of property; I have no doubt that he has given effect to my intention, and I accept the document which is put before me, as carrying it out.' The law as thus laid down by Sir James Hannen was cited with approval and acted on by the Privy Council in Perera v. Perera (1901) A.C. 354.

4. The Will is supported by a body of evidence given by respectable witnesses and it is difficult to understand what motive they can have had in joining in a conspiracy (for this seems to have been the view taken by the District Judge) to concoct a Will. The Will was attested by the Hospital Assistant, by a neighbouring land-owner unconnected with the family (the first witness for the plaintiff), by the Village Munsif of the deceased's village, (3rd witness for the plaintiffs), by a contractor who described the deceased as a great friend of his (the 4th witness for the plaintiffs), by a school-master in the village (the 7th witness for the plaintiffs), by the deceased's clerk (the 8th witness for the plaintiffs), by the deceased's brother-in-law, Ramasawmi Naidu (the 9th witness for the plaintiffs) and by others, all of whom speak to the deceased being capable of making a Will at the time, this Will, according to the plaintiffs' case, purports to have been executed. On this question of testamentary capacity, I can place no reliance on the evidence of the witnesses called for the defence. Subba Naidu, the widow's father, has played a very strange part in the proceedings in connection with the Will. He was an attesting witness, and notwithstanding, this he opposed [the Probate of the Will, and stated that he attested the document under misrepresentation. The District Judge finds that this story is palpably false and I agree with him. It seems far more likely that Subba Naidu was at first satisfied with the Will as being the best he could get for his daughter in the circumstances but was talked over by his daughter or somebody else and afterwards decided to oppose the Will in the hopes that he might establish a revocation of the Will of March 1905 and so bring about an intestacy which would be far more advantageous to his daughter than the arrangements made in the Will of 1905 or the Will of 1907. So far as the widow is concerned, the Judge finds that a document, of which she had the custody and which purports to be an authority for her to adopt and to revoke the Will of 1905, has been concocted. The evidence of the other witnesses, who speak to the deceased's having been unconscious at the time he is alleged to have made his Will, to my mind carries no weight. There remains for consideration the question whether in the view that the deceased was not capable of making a Will on June the 18th, the evidence establishes that on June the 14th he gave instructions for a Will which were in fact embodied in the document accepted by him on June the 18th.

5. The giving of these instructions is spoken to by the Hospital Assistant, the first witness for the plaintiffs, the 2nd witness for the plaintiffs who is now Tahsildar of Chingleput and at the time was Deputy Tahsildar of the deceased's village, by the 7th witness for the plaintiffs, the school-master, by his clerk the 8fch witness for the plaintiffs and by the brother-in-law, Ramaswami Naidu, the 9th witness for the plaintiffs. According to the evidence of the 1st witness for the plaintiffs, the deceased asked him to draft the Will and sent him the prior registered Will, that he drafted the Will, took the draft to the deceased who returned it to the witness and asked him to get a fair copy made and the fair copy was made in the witness's house. According to the evidence of the clerk, the 8th witness for the plaintiffs, the 1st witness for the plaintiffs, asked the clerk to make a note of the deceased's instructions for the new Will and lie gave this note to the first witness for the plaintiffs. This note is not forthcoming. Neither is the rough draft of the alleged Will which is spoken to by the first witness for the plaintiffs produced and the man who is said to have made the fair copy was not called. These are, no doubt, circumstances of considerable importance in considering the question whether the evidence establishes that directions were given by the deceased which were in fact embodied in the document accepted by him. It was urged upon us that there were some discrepancies in the evidence given by the witnesses as to the nature of these directions It seems to me the most that can be said is that all the witnesses who speak to the instructions do not speak to all the terms of the Will, but there is nothing inconsistent in the evidence of the witnesses who speak to these instructions. There are circumstances in this case which, no doubt, give rise to suspicion. I may mention the appearance of the so-called signatures in the document, the fact that the Will is alleged in the petition for Probate as dated the 17th, whilst the plaintiffs' case at the trial was that it was not executed until the 18th and the fact that the notes of the deceased's instructions and the rough draft of the Will are not forthcoming. On the other hand, there appears to be no adequate motive why the deceased's friends should have concerned themselves to concoct a Will which is a natural Will and which makes a reasonable provision for the widow of the deceased, whilst carrying out the wishes of the testator that his nephew, Appavu, should be the chief beneficiary under any Will he might make. Notwithstanding the fact that the District Judge after a careful and exhaustive examination of the evidence was of opinion that the Will is not established, I have come to the conclusion that the evidence is sufficient to establish that instructions for the making of the Will were given by the deceased on the 14th when he was of sound disposing mind, that these instructions were embodied in the document which was put before him on the 18th and that on the 18fch he was capable of understanding that that document embodied the directions which he had previously given.

6. The appeal must be allowed and the Will admitted to Probate.

7. The plaintiffs may take their costs out of the estate. The defendants will pay their own costs here and in the Court below.

Sadasiva Aiyar, J.

8. I entirely agree with my Lord the Chief Justice in the judgment which he has just now pronounced but I thought it proper to write a separate judgment of my own out of deference to the exhaustive and strenuous arguments which have been advanced before us on both sides and out of deference to the full and clear judgment of the learned District Judge with whose final conclusions I feel reluctantly constrained to disagree in this case. The Will in dispute has been attested by 11 persons, most of whom are perfectly disinterested. All the 11 witnesses have been examined in the suit, 13 on behalf of the plaintiffs and one on the side of the defendants. The evidence of the plaintiffs' witnesses satisfactorily proves the following facts:

(a) That on the 14th June 1907, the testator gave instructions that his registered Will, Exhibit C, dated 10th March 1905, should be modified in certain particulars and a new Will should be prepared by his long-standing friend, P.W. No. 1, who is a very respectable and well-to-do man of another caste, the said witness being the Chairman of the Sriperumbudur Union and a member of the Taluk and District Boards of Chingleput.

(b) That the instructions as to the modification of the former Will were taken down in the form of notes by the testator's faithful servant, P.W. No. 8, Bhashyam Iyengar, and that that memorandum and the old Will of 1905, were handed to P.W. No. 1 for the preparation of the draft of the new Will.

(c) That P.W. No. 1 prepared a draft on the 16th June 1909 and had it approved by the testator on the morning of the 17th June 1909.

(d) That the fair copy of the Will was engrossed by the Union clerk in accordance with the draft and it was made to bear the date of the 17th June; that the execution and attestation of the new Will were, however, postponed to the next day, the 18fch June, as the testator's father-in-law, Subba Naidu, had left Sriperumbudur--where the testator was lying ill for Madras to fetch Dr. Phillips from Madras on the early morning of the 17th June and had not returned as expected on the evening of the 17th but returned with Dr. Phillips only on the morning of the 18th.

(e) That the Will was executed and attested on the afternoon of the 18th June 1907, (the executing signature of the testator and the attesting signatures of the attestors appearing on each of the five pages of the Will).

(f) That the testator was of sound disposing mind on all the days between the 11th and 18th June, though he was getting weaker and weaker from the 14th. The 5 signatures of the testator in the Will, Exhibit A, were made in a very unsteady manner owing to his extreme physical weakness.

(g) And, lastly, that the testator who was removed from Sriperumbudur to his village of Tirumangalam on the night of the 18th lost consciousness at about noon of the next day, the 19th June, and died the same night.

9. As I said before, the learned Vakils on both sides argued the case exhaustively before us during several days and took us carefully through the voluminous evidence recorded by the lower Court. The main facts above set out have been, in our opinion, clearly established by the evidence. Among the attestors, there are 4 Reddiars of whom three (plaintiffs' witnesses Nos. 1, 6 and 10) are very respectable and disinterested persons, 3 Naidus of whom two (plaintiffs' witnesses Nos. 3 and 5) are respectable village Munsifs, 2 Brahmins of whom one (plaintiffs' witness No. 7) is a school-master who was a very intimate friend of the testator and is perfectly disinterested, and one Pillai (plaintiffs' witness No. 11) who was the Sub-Assistant Surgeon who attended on the deceased throughout his last illness. I find it impossible to believe that all these ten persons belonging to four different castes entered into a conspiracy to manufacture a forged Will and to support it by perjured evidence. The only attesting witness examined on the side of the defendants is the testator's father-in law, Subba Naidu, defendant's 1st witness. His story that, in order to escape the bother of the pressure brought to bear upon him by plaintiffs' 1st witness and by the testator's clerk, plaintiffs' 8th witness, he attested the Will, Exhibit A, without knowing its contents, was rightly disbelieved by the learned District Judge. All the other attestors of the Will speak to his (Subba Naidu's) presence at the execution and attestation of the Will and many of the plaintiffs' witnesses speak to his presence on the 14th. June 1907 when the testator gave instructions for the preparation of the Will. Plaintiffs' 2nd witness, a respectable Tahsildar, who was a friend of the testator, proves that in April 1907 the testator's father-in-law, (defendants' 1st witness) requested him to talk to the testator to modify the registered Will of 1905 in which the testator's wife was allowed only 40 rupees a month for her maintenance, so as to allow her an appreciably larger provision. It is further proved by the evidence on plaintiffs' side that on the 14th June 1907, Subba Naidu again put pressure upon the friends of the testator, plaintiffs' witnesses Nos. 1 and 2, to make an increased provision for the testator's wife. It cannot be denied that the testator wanted to leave the balk of his property to his only nephew--sister's son--a boy of 13 whom he was bringing up as a son and whom he called his Abhimana Puthra in his registered Will of 1905, Exhibit C. The testator was a man of very loose sexual morality. Sriperumbudur is considered a very holy place by Vaishnavite Hindus and contains a large Hindu temple. But, as usual with many of these holy Hindu temples, the place has also got unholy associations due to the presence of prostitute dancing girls attached to the temple, several hereditary prostitute families known as Varisais being attached to the said temple. The testator was, therefore, not very anxious for the company of his wife except when he had to perform religious, ceremonies either at his house or at the temple, (as the tenets of the Hindu religion and Hindu social opinion require the presence and association of the wife in the performance of religious ceremonies).

10. It is clear to my mind from the evidence of the Tahsildar, plaintiffs'2nd witness, that the testator's widow, 1st defendant, and her father, defendants' 1st witness, were dissatisfied with the 40 rupees maintenance allowed to her in the registered Will of 1905, that the testator was reluctantly persuaded to modify that Will and to give her a village yielding a monthly income of 100 rupees for her life through the mediation of friends like plaintiffs' 1st witness and plaintiffs' 2nd witness, that Subba Naidu knew the terms of the disputed Will Exhibit A, that he went to the Tahsildar, plaintiffs' 2nd witness, on the 18th June 1907 to request him to come and attest it and that he also expressed his grateful thanks to plaintiffs' 2nd witness on the evening of the day of the execution of the Will (the 18th June 1907) for his (plaintiffs' 2nd witness) having persuaded the testator to execute the new-Will. No doubt the new Will modifies the old Will in favour of the testator's childless sister also and hence a little more to the prejudice of the nephew and foster son (the residuary legatee and reversioner) and it may be conceded that the testator's final consent to the repeal of the old registered Will, Exhibit C, and to the execution of a new Will was given not exclusively in the interest of his wife. But I am quite clear that the pressure put by Subba Naidu on the testator's friends was a very material element in bringing about the new Will. As regards the testator's mental condition, not only do all the friends and relations examined on plaintiffs' side speak to it as having been sound and healthy both on the 14th and 18th June but the evidence of Dr. Phillips corroborates almost conclusively the evidence on plaintiff's side. Dr. Phillip's evidence contradicts the worthless evidence of Subba Naidu in almost all particulars. His evidence and the other evidence in the case prove that the testator was sitting on an easy chair on the 18th, while unconcious patients generally lie down in bed, that he walked behind a screen whenever he wanted to pass urine, that the testator showed obstinacy and would not submit to an operation, that the testator perfectly understood what the Hospital Assistant said to him, that he talked intelligently to the Hospital Assistant and that if he (the patient) had submitted to an operation, he might have lived. The evidence on defendants' side, of the widow and her father and of a few men of straw that the testator was utterly unconscious from the 14th June, cannot be believed in the face of the strong medical and other evidence on the plaintiffs' side.

11. The lower Court's judgment, though full and exhaustive, makes too much of the minor incidents in the ca3e and of the confusion as to dates into which plaintiffs' 1st witness fell when giving evidence in 1909 about matters that took place in 1907. The important and respectable witnesses on plaintiffs' side speak to Subba Naidu's having attended at Sriperumbudur the Udayavar festival in April 1907 when he requested plaintiffs' 1st and 2nd witnesses to persuade the testator to make a new Will increasing the provision for the wife's maintenance. The post card Exhibit XVI, dated 11th April 1907, written by 1st defendant to her father Subba Naidu shows that Subba Naidu was expected in a few days to come to Sriperumbudur to attend the festival, the journey from Sriperumbudur to Madras being a matter of 3 or 4 hours. The effect of Exhibit XVI is sought to be negatived by the post card Exhibt XVTf, dated 23rd April 1907, addressed to Subba Naidu by his brother Somu Naidu, which shows that on the 23rd April 1907 Subba Naidu was not at Sriperumbudur but at another village Charanallur and that he had left Madras on the 15th April. I find no inconsistency whatever between the facts gatherable from Exhibit XY1I and Snbba Naidu's presence between the 15th and 22nd April at Sriperumbudur and I have no hesitation in finding that Subba Naidu as spoken to by plaintiffs' 1st and 2nd witnesses was present for at least four or five days during the Udayvar festival in April 1907 in Sriperumbudur and requested them to intercede with the testator on behalf of the testator's wife.

12. Again, the defence sought to make out that Subba Naidu was not present atSriperum-budur on the 14th April 1907 as spoken to by plaintiffs' witnesses and that he came to Sriperumbudur only after receiving the telegram Exhibit I sent from Sriperumbudur about 2 A. M. on the 15th June 1907. The telegram cannot prove that Subba Naidu had not been present (as stated by plaintiffs' witnesses) on the 13th June and on the 14th June 1907 till sunset at Sriperumbudur, which is only, as I said before, 3 or 4 hours' journey from Madras, there being several trains running by two separate railways from stations near Sriperumbudur to Madras. On the other hand, the 1st defendant blurted out in cross-examination that her father Subba Naidu was present both on the 13th and 15th in Sriperumbudur, thus showing that the defenca story that Subba Naidu never came in June 1907 to Sriperumbudur before the 15th of that month is false. The learned District Judge tries (ineffectually in my opinion) to get over the 1st defendant's admission by saying (see paragraph 14 of his judgment) that it was a slip due to the strain of the severe cross-examination she was subjected to.' There can be no doubt that in the first registered Will of 1905, the childless sister of the testator and the wife of the testator were not treated with as much consideration as might have been expected, while the present Will is a much more reasonable and proper testamentary document. If this new Will is rejected as not proved and if the registered Will stands good, the 1st defendant, the widow, would be in a much worse position. Why then did she fight this new Will with such strenuousness in the lower Court and why does she fight it in this Court also with the same fervour? It is because she with the help of her father and her uncle has brought into existence the three letters, Exhibits XII, XIII and XIX, as if they had been written by her husband to her father, to her uncle and to herself, revoking the registered Will and giving her power to adopt a son other than the testator's nephew to whom he was so much attached. The learned Judge rightly disbelieved the genuineness of Exhibit XIX and rightly suspected that Exhibits XII and XIII were also forgeries. In the appeal before us also, the 1st defendant's learned Vakil tried to support the genuineness of Exhibits XII, XIII and XIX because, unless they are genuine, 1st defendant's opposition to the new Will will only restore the old registered Will which is much less advantageous to her than the new Will. But he failed to convince us that the learned District Judge's conclusion upon this point was erroneous.

7. The lower Court seems to have been unduly prejudiced against the evidence on plaintiffs' side principally because:

(a) The 1st witness for the plaintiff made a mess in his evidence of the date in June 1907 when instructions were given by the testator, and the date when the witness prepared the draft Will, and because the entries in the account-book Exhibit III on the 16th and 17th June made it appear that Dr. Phillips was paid on the 16th and 17th June for his visits whereas his two visits were really made on the 14th and 18th June.

(b) One of the instructions said to have been given by the testator on the 14th June 1907 was that a dancing girl called 11th Varisai, to whom in his registered Will of 1905 he had made a gift (by way of legacy) of the debt due by her, should not get that legacy in the new Will. Plaintiffs' 1st witness and plaintiffs' 2nd witness in their respective depositions gave different versions as to what the testator meant by 'dancing girl 11th Varisai,' plaintiffs' 1st witness thinking that the testator meant the eleventh in order of time of the numerous dancing girls kept by the deceased, whereas plaintiffs' 2nd witness said that the testator meant the dancing girl who was given a legacy in the 11th paragraph of the earlier registered Will. The District Judge says, as regards this discrepancy: 'It strikes one that this' (introduction of 11th series as the description of the dancing girl by the testator) 'was an invention of plaintiffs' 1st witness to give a realistic colour to the story,' in connection with the instructions given by the testator.

13. As regards the confusion in dates made by plaintiffs' 1st witness, the witness was quite definite that the instructions given by the testator were given on the day of the first visit of Dr. Phillips and that the Will was executed on the date of the second visit of Dr. Phillips. He was not sure whether one, two or three days intervened between the two visits and hence he confused the dates in the first portion of his evidence but, with reference to the other noteworthy incidents in the case, his evidence as to the sequence of events is quite consistent. Again, as regards the dates in the account-book Exhibit III as well as in respect to the dates when instructions were given and the Will was drafted, the evidence of the Gumasta, plaintiffs' 8th witness, gives full and very natural explanations reconciling all apparent inconsistencies and I was struck by the straightforward way in which the whole of the evidence of plaintiffs' 1st, 2nd and 8th witnesses has been given.

14. Coming to the discrepancy as to what is meant by the expression '11th Varisai' used by the testator, I find it impossible to believe that plaintiffs' 1st witness introduced an imaginary and apparently unintelligible story about 11th Varisai in mentioning imaginary instructions given by the testator or that he tutored the other respectable witness, plaintiff's' 2nd witness also to introduce this expression '11th Varisai' in plaintiffs' 2nd witness's evidence but failed to tutor him further as regards the meaning to be attached to that expression and so made plaintiffs' 2nd witness contradict him (plaintiffs' 1st witness) as to what the testator meant by the curious expression '11th Varisai.' The learned District Judge seems also to have failed to understand the evidence of plaintiffs' 8th witness, who is a permanent resident of the Sriperumbudur village and who is a Vaishnava Brahmin who knows the customs and practiceu of the Vaishnava temple at Sriperumbudur. This witness said that: 11th Varisai means the 11th dancing girl in the series. In those big temples, each household of dancing girls is called in tamil a Varisai or a Kothu and each such household has got its own number. The 11th Varisai means the dancing girl household attached to the temple service and numbered as series 11 in the temple accounts. The dancing girl Seshal and her daughter Papal according to plaintiffs' 8th witness belong to the household numbered 11 and people usually referred to the head dancing girl in each such household as 'Varisai No. so and so.' The testator, who had formerly immoral relations with the daughter Papal of the dancing girl f?eshal No. 11 Varisai and had quarrelled with her after the date of the registered Will, desired while giving instructions for the preparation of the new Will that her legacy should be struck off from the new Will. The dancing girl Papal (mother of defendants Nos. 2 and 3) did not go into the box to deny that she belonged to the 11th Varisai. The plaintiffs' 1st and 2nd witnesses evidently misunderstood what the testator meant when he spoke of the legacy to 11th Varisai in the former Will and each in his deposition gave the explanation which he thought probable. Far from this discrepancy showing that the witnesses were speaking to a concocted and imaginary story which they had conspired to foist upon the Court as true, it shows that they were speaking to facts which really took place. I might add that the three executors under the new Will Exhibit A are the same three persons as were appointed under the old Will and the two attestors of the old Will are two of the eleven attestors of the new Will.

15. I do not think it necessary to notice the very minor details, the real or supposed discrepancies in the evidence as to which details have been given disproportionate importance in the judgment of the lower Court and were also strenuously urged before us as falsifying plaintiffs' case. I need only say that the majority of them are capable of ready and obvious explanations and the remaining discrepancies do not weaken to any appreciable extent the almost overwhelming strength of the evidence on the side of the plaintiffs as to the execution of the Will Exhibit A by the testator, after he had fully understood its contents and while he was of sound disposing mind. The lower Court's decree will, therefore, be reversed and the plaintiffs' suit will be decreed. Plaintiffs' costs shall come out of the estate. The defendants will bear their own costs in both Courts.


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