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Sadachi Ammal Vs. Rajathi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1940Mad315
AppellantSadachi Ammal
RespondentRajathi Ammal and ors.
Cases ReferredTyrrell v. Painton
Excerpt:
- - 201. it is well established that whenever a will is prepared; i do not deny that it is open to a testator to vary his dispositions as he pleases and if the court is satisfied that the later document represents his voluntary, act, it is not for the court to substitute its view of reasonableness in place of the testator's view. that these changes are distinctly prejudicial to the widow can admit of no doubt. this assertion rests on the sole testimony of defendant 1 whose interest in the success of the litigation cannot be denied. but in assessing the significance of that fact, there is a well-marked distinction between cases in which the subsequent dispute relates to the fact of execution and cases in which the question raised relates to the 'testamentary capacity' of the executant......ordervaradachariar, j.1. these appeals arise out of the same suit and raise the same question for decision. the appellants are some of the legatees under a will (marked ex. i) said to have been executed by one sanjeevi sundaram pillai on 2nd september 1930; and the point for decision is whether the said will was executed by the deceased in a sound disposing state of mind (issue 1). ex. i was registered at the residence of the deceased at 10 a.m. on 3rd september 1930 and the testator died after midnight of 4th september, i.e., early (2 a.m.) on 5th morning. the suit was instituted by the widow on 23rd february 1931, for a declaration that ex. 1 was invalid and void and did not affect her rights under the hindu law and under a prior will (ex. b), dated 7th august 1930. as there were.....
Judgment:
ORDER

Varadachariar, J.

1. These appeals arise out of the same suit and raise the same question for decision. The appellants are some of the legatees under a will (marked Ex. I) said to have been executed by one Sanjeevi Sundaram Pillai on 2nd September 1930; and the point for decision is whether the said will was executed by the deceased in a sound disposing state of mind (issue 1). Ex. I was registered at the residence of the deceased at 10 A.M. on 3rd September 1930 and the testator died after midnight of 4th September, i.e., early (2 A.M.) on 5th morning. The suit was instituted by the widow on 23rd February 1931, for a declaration that Ex. 1 was invalid and void and did not affect her rights under the Hindu law and under a prior will (Ex. B), dated 7th August 1930. As there were disputes about possession, the plaint also prayed for reliefs by way of injunction and delivery of possession (if necessary). The defendants may be divided into four groups. Defendant 1 who receives the largest benefit under Ex. I, valued at Rs. 12,100 was the divided brother of the deceased. Defendant 2 who is given about Rs. 4000 worth of property was his sister and the wife of defendant 3. Defendants 4 to 9 are bandhus of the deceased, to whom property worth Rs. 3000 in all, is bequeathed in three shares. Defendants 3 and 10 are not beneficiaries but have been impleaded as having taken a prominent part in bringing about the will. Defendant 4 asserted an independent title to the estate; he was therefore exonerated from this suit and may accordingly be left out of account. Defendants 3 and 10 denied that they took any improper part in connexion with the will. They contended that they had been unnecessarily impleaded in the suit. As defendant 10 was one of the attesters to the will, he added that the will was freely and openly executed by the deceased when in a sound state of mind and with full knowledge of its contents. The legatee defendants (other than the fourth) supported the will.

2. The learned Subordinate Judge came to the conclusion, that though Ex. I had been signed by the deceased, the defendants had not proved that it was voluntarily executed by him in a sound disposing state of mind and that they had not cleared up the suspicious circumstances surrounding the execution of the second will so soon after the first will and altering its provisions in a. material manner. He accordingly passed a. decree substantially in terms of the prayer in the plaint. Defendant 1 has not chosen to appeal against the decree and has been impleaded as a respondent. Defendant 2 has filed A.S. No. 115 and defendants 5 to 9 have preferred A.S. No. 201. It is well established that whenever a will is prepared; and executed under circumstances which; raise the suspicion of the Court, it lies on the propounders not merely to prove the execution of the will, in the sense that it was signed by the testator, but also to adduce evidence which removes such suspicion and' to satisfy the Court that the testator knewt and approved of the contents of the will see Tyrrell v. Painton (1894) L.R.P. 151 8 Pat 3822 and Sarat Kumari Devi v. Sakhichand (1929) 16 A.I.R. P.C. 45 and Vellaswami Servai v. Sivaraman Servai . In applying this rule, the question has sometimes been raised, what is the kind of suspicion contemplated by this rule? It is sufficient, for the purposes of this case, to refer to the facts of the cases last cited, as indicating some of the grounds of suspicion, because similar grounds also exist here. It seems to me that the existence of very material differences between two wills said to have been executed within a short interval is undoubtedly a circumstance calling for explanation. I do not deny that it is open to a testator to vary his dispositions as he pleases and if the Court is satisfied that the later document represents his voluntary, act, it is not for the Court to substitute its view of reasonableness in place of the testator's view. It may also be conceded that it may not always be possible for a third party to offer an adequate explanation for the reasons or motives which led as testator to change his mind. Making allowance for these considerations, it nevertheless seems to me that the difference between two alleged wills, especially if they have been executed at a short interval is a matter which the Court may legitimately take into account in determining whether the later will represents the conscious and voluntary act of the testator. And if the circumstances attending the execution of the second will suggest that the party substantially benefited by the change must have had some share in bringing it about, the burden lying on him is proportionately heavier and the (least that the Court is entitled to expect from him, if he desires to sustain the will, is that there should be a frank and full disclosure of all material circumstances. Considering the case from this point of view, I agree with the lower Court that those who propound the will, Ex. I, have not discharged the burden of proof which the law casts upon them.

3. In para. 12 of its judgment, the lower Court has set out the points of differences between the two wills, Exs. B and I. Under the earlier will, which purported to deal only with the immovable properties of the testator, the sister was only given a sum of Rs. 1100 outstanding on usufructuary mortgages. Under Ex. I, which purports to deal with the whole estate of the deceased (both moveable and immovable), she is given immovable property (buildings) of the value of Rs. 4000. In considering the significance of this change, the Court has to take note of the plaintiff's allegation that defendant 3, who was the sister's husband and was admittedly present at the execution of the will, took a prominent part in bringing it about. There is also the fact that though he was admittedly conducting this suit on behalf of his wife and was present in Court during the trial, he has not thought fit to go into the witness-box. The position as regards the brother is that under the first will he was given the testator's share in the old family house, on condition of his per. forming the obsequies of the deceased. This share was valued at about Rs. 2000 and the first will contained a further provision that if the brother (defendant 1) would not per form the obsequies, the widow should her self perform the ceremonies and take even this item of property. The relative insignificance of the gift and the introduction of this divesting clause even in respect of that small gift are certainly not indicative of extreme cordiality in the relations between brothers or of a desire on the part of the testator to bestow any large bounty on the younger brother, on the ground that he had children. Under the second will, the brother is given not merely the testator's share in the ancestral house but additional immovable properties valued at Rs. 10,100 subject to the liability to pay Rs. 300 to one Mooka Kothanar. The clause as to his performing the funeral ceremonies of the testator is repeated but the divestitive condition found in Ex. B has been omitted. That the dis. position under Ex. I involves a very substantial change in favour of defendant 1 has not been disputed. I shall in due course deal with that portion of his evidence which suggests a possible explanation for this change and states the part which he took in connexion with the transaction. As regards the widow, the position under the first will was that she took the moveable properties of the deceased as heir-at-law and she took an absolute interest in immovable properties of the value of about Rs. 21,000. She was also given an unrestricted power of adoption. In the later will, the power to adopt is omitted. She is given a house worth Rs. 4000, a sum of Rs. 1100 due under usufructuary mortgages and Rs. 2500 in cash. That these changes are distinctly prejudicial to the widow can admit of no doubt. It has not been suggested that the relations between the husband and the wife were not quite cordial. The attitude of the wife to an adoption proposed by the husband on the day before the execution of Ex. I has been suggested as a possible explanation for the change. I shall deal with this suggestion in due course.

4. The provision in Ex. I in favour of defendants 4 to 9 is wholly new. The documentary evidence shows that in or about 1912, there were disputes between the testator and these defendants leading to civil and criminal proceedings which ended in the testator's favour. It is unnecessary to assume that the estrangement resulting from these proceedings endured to the end. But it is significant that in the first will the testator never thought of extending his bounty to them. None of these defendants has gone into the witness-box to suggest a possible reason for the change within the fortnight that intervened between the registration of the first will and the execution of the second. Proceeding next to the evidence relating to the actual execution of the second will, I am unable to minimize the importance of the fact that out of six attesters to the will, only one, namely D.W. 4, has been examined by the propounders. Two of the attestors (P.Ws. 1 and 4) have been examined on the plaintiff's side. I shall deal with the evidence of these witnesses in due course. Attestors Nos. 1 and 2 to the will, Ex. I, are asserted by the defendants to be respectable persons. But yet no intelligible explanation has been given for the omission to examine them in support of the will. A suggestion was made in the course of the trial that there was some estrangement between defendant 3 and the first attestor in connexion with some election to the trusteeship of Sri Minakshi temple. But seeing that defendant 3 took no interest under the will and that defendant 1 was the main beneficiary, Mr. Bajah Aiyar realized that there is not even plausibility in the attempted explanation. He therefore asked us to deal with the case on the footing that his clients have no explanation to give for the non-examination of the first or the second attestor. The remaining attestor is defendant 10, who filed a written statement repudiating the allegations of partisanship made against him in the plaint and asserting that the will was freely and openly executed by the testator with full knowledge of its contents and that it was duly attested by himself. It is certainly a matter for legitimate comment that even this attestor has not been examined in support of the will; and here again, no explanation for the omission has even been attempted. It remains to add that the writer who is said to have taken instructions from the testator in respect of the changes to be made in the dispositions contained in the first will has not been examined either. It is stated by defendant 1 in his evidence that the fair copy (Ex. I) was prepared by the writer in his own house. But defendant 1 asserts that the writer prepared the fair copy from the draft made in the testator's presence as per the testator's instructions and read and approved by him. This assertion rests on the sole testimony of defendant 1 whose interest in the success of the litigation cannot be denied. The doubts and suspicions aroused by the circumstances above adverted to are only increased by the story that it was considered worth while - if not necessary - to complete the execution of the will at 10 P.M. on the night of the 2nd, according to the evidence of defendant 1 and D.W. 4, while two of the attestors (P.Ws. 1 and 4) would say that it was between 1 and 2 A.M. (that night) when their attestation was obtained.

5. Mr. Rajah Iyer, the learned Counsel for the appellant, did not dispute the adverse significance of the above circumstances, but he contended that all doubts and difficulties arising therefrom must be held to have been removed in this case by reason of the fact that the will has been registered during the testator's lifetime and by the evidence given by the Sub-Registrar (D.W. 1) and by the identifying witness (D.W. 2) as to the condition and knowledge of the testator at the time of the registration. I shall presently deal with the oral evidence of these two witnesses. I do not under-estimate the importance of registration during the lifetime of the testator; but in assessing the significance of that fact, there is a well-marked distinction between cases in which the subsequent dispute relates to the fact of execution and cases in which the question raised relates to the 'testamentary capacity' of the executant. The instances in which Courts have declined to uphold even registered wills of. Shanmugaraya Mudaliar v. Manikka Mudaliar (1909) 32 Mad. 400, Vellaswami Servai v. Sivaraman Servai , Brajeshwari Dasi v. Rasik Chandra : AIR1925Cal739 and Surendra Nath v. Jnanendranath : AIR1932Cal574 go to show that the scope of the enquiry by the officer who registers a will during the testator's lifetime does not always comprise all the ingredients which the Court considers material when called upon to determine a question of testamentary capacity. Registration may well be conceded to be a solemn act, Gangamoni Devi v. Troiluckhya Nath (1906) 33 Cal. 537 cf. Bindeshri Prasad v. Mt. Baisakha Bibi (1920) 7 A.I.R. P.C. 70, so far as it goes; but where a will is presented by the executant himself and he admits execution, the requirements of the registration law are nearly satisfied and the only matter for enquiry by the Registrar in such a case is the identity of the person appearing before him and alleging that he executed the document (see Sections 34 and 35, Registration Act). An enquiry as to the 'capacity' of the executant is provided for only if the executant appears to the registering officer to be a minor, an idiot or a lunatic. With this, one may compare the rule frequently laid down by the Court that the mere fact that the testator could say that it was his will or could answer some simple questions which were put to him does not show that he had a sound disposing mind at the time. Brajeshwari Dasi v. Rasik Chandra : AIR1925Cal739 , quoting from Sefton v. Hopwood (1858) 1 F. & F. 578. And considerations like those indicated in Harwooa v. Baker 13 E.R. 117 and Durnell v. Corfield 163 E.R. 961 are ordinarily foreign to the registering officer's enquiry though his evidence in the witness box may help the Court to ascertain important details as to the knowledge and condition of the testator.

6. On behalf of the appellants, strong reliance was placed in this connexion on the decision of the Judicial Commissioners of Nagpur in Nilkanth v. Guna Bai (1926) 13 A.I.R. Nag. 482. I am not concerned with the observations of the learned Judges on the evidence before them, but, it seems to me, with all respect, too wide to lay it down as a general proposition (if they meant it) that the registration endorsements 'completely' prove that the document was read over to the executant and understood by him. The certificate of the registering officer is, given only a limited effect under Section 60 (2), Registration Act. As the significance of the registration and the effect of the evidence of the Sub-Registrar (D.W. 1) have to be appraised with due regard to the physical and mental condition of the testator at the time, I now turn to the evidence in the case on that point. Till D.W. 2 went into the box, both parties proceeded on the assumption that the testator had been suffering from consumption; this is also the statement of the deceased as recorded by the Registrar (in Ex. Ill) in the presence of D.W. 2. When D.W. 2 was examined in chief, he stated that when he examined the testator two or three days prior to the registration, he found nothing wrong with his lungs or heart and the patient only complained of abdominal discomfort which the witness attributed to flatulence. The witness added that the patient 'had nothing wrong with him except chronic indigestion but that the case was mismanaged.'

7. I do not think it necessary to criticize the diagnosis made by the witness; he is entitled to have his own opinion. It is sufficient to take the symptoms spoken to in the evidence. D.W. 2 admits that the deceased had been practically bedridden for about a month before his death, though it appears that with some difficulty he attended at the office on 19th August 1930 for registration of the first will (Ex. B). The plaintiff and some of her witnesses have undoubtedly exaggerated when they deposed that for several days before his death the deceased was lying speechless and unconscious. It however appears even from the evidence of the Sub-Registrar that he understood the deceased to be seriously ill, that when he went in, the testator had to be helped to sit up in his cot, that he was very weak, that his answers were very low though audible and that he had such difficulty oil speech as a man seriously ill would have. In the face of this evidence, the account given by some of the defendants' witnesses that they did not find him to be seriously ill, that on the afternoon of the 2nd, he was able to sit up of his own accord and dictate the lines on which the new will was to be drafted, that he read the draft himself and read the fair copy of the will a number of times does not deserve credit. Defendant 1 as D. W 3 went the length of deposing that at the time of the execution of the will, the testator 'was able to walk about inside his house' and he attributes to him every step taken in getting the will prepared and attested. Though the written statement referred to 'tuberculosis,' he preferred to discard it and, taking the clue from D.W. 2, he stated that his brother was only suffering from light cough and flatulence. Cross-examined as to his brother's condition on the second afternoon, D.W. 3 stated that he was not confined to bed; he was able to talk well and, excepting the Survey numbers, he himself dictated to the writer the matter of the draft. The witness is of course interested and the learned Judge has not believed him.

8. I find it difficult to reconcile the above story with the description given by the Registrar as to the condition of the testator on the morning of the 3rd. The defendant's witnesses are obliged to say that they did not expect the testator to die soon and his death on the fourth night came upon them as a surprise. On the other hand, P.W. 1 states that for ten days before his death, the testator was not able to move about, was able to talk but not much and at the time the witness attested the will (on the second night) he only beckoned to him to do so by a shake of his head. The witness is admittedly a friend and neighbour of the deceased and a man of status and even defendant 1 does not deny his respectability. Nothing has been suggested against him beyond a possible sympathy with the plaintiff; but even allowing for some exaggeration for this reason, the story of this witness is decidedly in conflict with the defendants' version The completion of the will at midnight on the second and the anxiety to bring in D.W. 1 for registration without delay, early on the third morning, though in the ordinary course the matter would have to be dealt with by Sub-Registrar No. 4 (a Mahomedan gentleman who could not be found at the time) are clearly indicative of a consciousness that the testator's condition at the time was not such as to permit of delay. The nature of the disease was certainly such as greatly to reduce the physical capacity of the patient and though he might have retained 'consciousness' almost to the end, his capacity for exertion, whether mental or physical, must have become greatly diminished a few days before his death. I may here make a passing reference to the inference suggested by a comparison of the signatures affixed by the testator to Ex. B presumably on 7th August and again at the time of its registration on 19th August with those affixed to Ex. I at the time of its execution and also at the time of registration. The signatures to Ex. B seem firmer and more uniform than those affixed to it at the time of its registration. The signatures to Ex. I are much less uniform and even more shaky than the registration signatures on Ex. B, while registration signatures on Ex. I are decidedly weak and shaky. The inference suggested is that the testator was progressively declining in strength.

9. There is one small episode brought out in the cross-examination of D.W. 2 which seems to me to have some significance in this connexion, namely that some time on 3rd September, the witness gave the testator a mixture of Digitalis Tr. Mus and Tr. Nux Vomica. Without attaching quite as much importance to this as the learned Subordinate Judge has done, I am content to say that this clearly indicates that the condition of the testator on the morning of the third was one of extremely low vitality and while hastening the Sub-Registrar's visit, the people who were interested in getting the will registered also thought it prudent to give the patient a stimulant dose, both to avoid suspicion on the part of the Registrar as to his condition and to enable the testator to go through the requisite formalities. The presence of D.W. 2, at the time as an identifying witness leads me to think that he had been brought in there only to disarm any suspicion or inquisitive enquiries on the part of the Registrar as to the condition of the testator, as the presence of a medical man is likely to reassure him. I would not have drawn this inference if I had been satisfied as to the truth of D.W. 2's story that a couple of days, before he had been called in to treat the testator,

10. The learned Subordinate Judge who re, corded his evidence has strongly characterized his evidence. I can only say that the witness brought down those strictures upon him, by the way he gave his evidence; be, cause, a man of his position, if he desired his word to be accepted, must have given his evidence with a sense of responsibility and an attempt at accuracy. In the chief examination, the witness mentioned only one occasion when he gave him some medicine for it (flatulence) from my dispensary' and this occasion, he stated, was two or three days prior to the registration. He never referred to his having given any mixture to the patient on 3rd September. In cross-examination, he was asked about his prescription book which he undertook to produce after lunch and when on production, it was found to contain a prescription for a stimulant mixture on the 3rd and contained no other prescription for the testator, the witness put forward the story of his having prescribed twice and suggested that the medicine prescribed by him on the previous occasion must have been compounded elsewhere. The story was, to say the least, lacking in can dour and I am not prepared to say that the learned Judge was wrong in declining to accept the testimony of the witness at its face value. It was a strange coincidence that the witness was at least an acquaintance of defendant 3 for some years and was living as a tenant in a house of defendant 3 who was certainly interested in propping up the will. I am not prepared to accept the suggestion that this stimulant was given after the registration; as I have already stated, the witness did not choose to disclose this fact in his chief examination and so far as I can gather from the evidence, the defendants and their friends seem to have shown very little concern for the testator and for his treatment, after the will had been registered.

11. Reading the evidence of the Sub-Registrar in the light of the foregoing discussion, I am unable to hold that it is sufficient to bring home to the testator such knowledge of the contents of the will as the law requires in the case of a man whose physical and mental condition at the time must have been greatly impaired by prolonged illness and approaching death. The Registrar states that he 'conversed with him' found him to be in 'a sane and sound condition of mind,' that 'he was conscious of what he was doing and was giving rational answers to questions put to him.' This, I consider, is only formal evidence, though it is an. answer to the extreme case of the plaintiff that the deceased was lying speechless and unconscious for several days before his death. Then comes the following statement:

I read out the will to the testator. He understood and followed me. He also read the will for himself. After I read out the will and asked him if he had affixed his signature to it, he took the will from me and read it for himself and said 'yes'.... I asked him if he had revoked the prior will and he said 'yes'.... I took down his answer in statement form (Ex. III).

12. Except the reference to the testator reading the will for himself, I accept the above evidence. I am inclined to think, having regard to my view as to the testator's physical condition at the time, that he would have been wholly unequal to the task of reading a document of six pages which was able to read only with some effort and that an attempt of the testator to turn over the, pages slowly before putting his signature to the registration endorsement must have been interpreted by the Registrar as an attempt to read. While I have no doubt that the Registrar must have done his duty under the statutory rules, I cannot help thinking that he could not have been unduly critical or inquisitive as to the testator's condition because the presence of a medical man (D.W. 2) at the time must have reassured him and the temporary effect of the heart stimulant given to the testator must have led the Registrar to overestimate the physical fitness of the patient.

13. Taking it that there has been some sort of a reading to the testator, its bearing on the question under consideration is largely a matter of degree, depending upon the Court's view as to the capacity of the testator at the time. The Sub-Registrar does not say that he drew the testator's attention to the points of difference between the two wills and it was not part of his duty to do so or ask for reasons or explanations as to the difference. The statement recorded in Ex. Ill that under Ex. I properties were bequeathed to the wife, to the sister and to the dayadis cannot be very informing, because this will not bring home to him the difference between the two wills, as the general description was equally true of the first will. It may be noticed, for what it is worth, that the statement above quoted from Ex. III makes no specific reference to the bequest to the brother, unless he is included in the generic term 'dayadis' and the term 'dayadis' on the other hand was not appropriate to refer to defendants 4 to 9 who are only bandhus. Mr. Rajah Iyer, relied strongly on the propositions stated by Lord Penzance in Guardhouse v. Blackburn (1866) 1 P. & D. 116, particularly on proposition No. 5 to the effect that the fact of a will having been 'duly read over to a capable testator on the occasion of its execution' or of its contents having been 'brought to his notice in any other way should, when coupled with his execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof.' The decision of the House of Lords in Fulton v. Andrew (1875) 7 H.L. 448 clearly implies that the above statement should not be taken as an absolute rule of law. But even on the terms of the rule as stated, the question remains, whether the testator to whom the will was read was a 'capable testator.' In the circumstances of this case I am unable to uphold the will merely on this evidence, without a consideration of the circumstances attending the execution of the will.

14. As to the execution of the will and the preparation of its draft, we are left to depend almost wholly on the evidence of defendant 1. D.W. 4, the only attestor examined by the defendants no doubt says that he went to the testator at about 9 P.M. on the 2nd that the testator told him of his dissatisfaction with the previous will and the execution of a new will, that the testator read out the new will in his presence and then signed it. The learned trial Judge was not impressed with the evidence of this witness and though his interest in defendant 9 may be said to be remote, I am not prepared to differ from the Judge's estimate of his evidence. His statement that at the time of the execution of Ex. I, the testator did not appear to be seriously ill is certainly calculated to convey an erroneous impression. The suggestion that the testator read through the will in the presence of the witness, with the aid of a hurricane lamp, spending half an hour over the task and sitting all the while, does not seem to me credible. I have already referred to the fact that the writer who is said to have prepared the draft under instructions from the testator has not been examined and no explanation has been suggested for this omission or for the omission to examine the remaining three attestors.

15. Mr. Rajah Iyer contended that there is no duty on the propounders to examine all the available attestors or account for their absence. In this connexion, reliance was placed on the observation of Mookerjee J. in Prasanna Moyi v. Baikuntha Nath (1922) 9 A.I.R. Cal. 260 . He overlooked the fact that in reversing this judgment, the Judicial Committee laid stress on the absence of these witnesses : Baikuntha Nath v. Prasanna Moyi (1922) 9 A.I.R. P.C. 409. On p. 705 of the report, their Lordships observed:

It may be that when the proponent's case was closed the precise character of the adverse evidence in disparagement of the alleged will was not anticipated. But the strength of the opposition must have been sufficiently apparent to show the urgent necessity for calling all available evidence.

16. In the present case, the evidence given by two of the attestors P.Ws. 1 and 4, if believed, so greatly weakens the case in favour of the will that the defendants could not have been blind to the necessity of supporting their case by the evidence of the other attestors, especially when two of them are asserted to be respectable men. Mr. Rajah Iyer asked, whether the very fact of two respectable people having attested the will is not itself strong evidence in its favour. I do not think he is entitled to ask us to make any such presumption when the defendant did not choose to call them, though they were available. The defendants could not, when they were leading evidence, have been ignorant of the fact that P.W. 1 who is also described by them as a respectable man was going to depose on the plaintiff's side, because they seem to have summoned him upto one stage but afterwards have given him up. This only made it the more incumbent upon them to place before the Court the evidence of the writer and the other attestors. Even assuming that evidence of P.Ws. 1 and 4 is discredited, this by itself will not advance the defendants' case, because the onus of affirmative proof rests on them. In Ram Gopal Lal v. Aipna Kunwar (1922) 9 A.I.R. P.C. 366 , the Judicial Committee observed as follows:

As it is impossible that he (the deceased) can be called either to deny his signature or to explain the circumstances in which it was attached, it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law.... In case of doubt or dispute justice requires that the best evidence procurable of the testator's signature (Note. - The factum of execution was in question in the case) should be furnished and an attempt to support the signature by anything that falls short of this standard is a matter which, though it may not be fatal, is a serious defect.

17. Their Lordships then proceeded to comment on the propounder's omission to call certain witnesses. On principle, the above remarks equally apply to a case where the testator's capacity is in question. Having given the case my most anxious consideration, I am unable to resist the suspicion that several witnesses have been deliberately kept back only because the execution of Ex. I was not altogether above board. Mr. Rajah Iyer contended that judgment of the Court must not rest on mere suspicion but on proved facts. But this theory has to be applied with considerable qualifications to cases relating to wills because, in this branch of the law, it is well established' that when the circumstances attending the execution of the will are calculated to raise the suspicion of the Court, the will ought not to be pronounced for unless the suspicion is removed. Mr. Rajah Iyer laid some stress on the fact that the plaintiff came to Court with a false case and failed in her attempt to prove that the testator was unconscious and that the will was procured by undue influence. This is no doubt regrettable; but even this does not materially advance the defendant's case, for

'it is for those who propound the will to remove suspicion and to prove affirmatively that the testator knew and approved of the contents of the document and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence or whatever else they rely on to displace the case made for proving the will.' Sarat Kumari Devi v. Sakhichand (1929) 16 A.I.R. P.C. 45 quoting from Tyrrell v. Painton (1894) L.R.P. 151.

18. Some point was made of the fact that the plaintiff must have been present at the execution and the registration of the will and the story of her absence is false as also the story of her complaint to the police. I am prepared to ignore her story, in view of the fact that Mr. Subramania Iyer, the vakil who is said to have filed the police complaint on her behalf, has not been examined when the petition itself was found to be not forthcoming. But I do not feel that much could be made of her presence, when it is remembered that she was an illiterate Marava woman, aged about 25, and that a number of males were putting the will through beside the bed of her dying husband. Assuming that she knew that a new will was being executed, she could not have even known of its contents, unless her husband or some of the defendants or the writer informed her of the same or of the difference between the two wills. It was urged in this connexion that at the time of the preparation of the draft for Ex. I, possession of Ex. B must have been obtained either from the plaintiff or from her husband as also information as to the repayment of a sum of Rupees 2000 by a debtor between the dates of the two wills. I am not satisfied that these facts have been established and do not therefore pause to consider what inference those facts, if true, will lead to. There is no force in the argument as to acquiescence; because it is clear even from the evidence of D.W. 2 that within a short time of the testator's death, disputes arose between the parties and this is also shown by the reference in Ex. K to some petition by the plaintiff to the police before 26th September. The story of the presence of the plaintiff's father at the time of the execution or the registration of Ex. I does not rest on the reliable evidence and the absence of his attestation from Ex. I is dearly inconsistent with the theory of his having consented to the new arrangement. The delay of about five months before instituting this suit cannot be put against the plaintiff, because in view of the status and capacity of herself and her father, it is clear that they must have depended on others for help and advice. That their case is in the hands of some law tout may regrettably be true; but that has little bearing on the merits of the case.

19. It remains to deal with the suggestion made as a possible explanation for the differences between the two wills. Defendant 1 would not directly make himself responsible for the suggestion but dropped one or two hints and left it to his counsel to make the best use of the same. His story is that though he was on good terms with the testator, who was only living in the opposite house and was frequently going to him, he was ignorant of the execution and registration of the first will till the brother chose to inform him of it on 31st August. I find it difficult to believe this, in view of the fact that the testator's visit to the Registrar's office, in the then state of his health, must have come to his notice and provoked enquiry even if there had been any attempt at secrecy. In the written statement, a suggestion was made that the first will did not represent the voluntary or deliberate intentions of the deceased, but was secretly brought about at the instance of P.W. 5. This suggestion has not been persisted in. It may be noted that there was an interval of twelve days between the writing and the registration of the first will; in view of this long interval and of the fact that the testator thought it fit in the then state of his health to go to the Registrar's office to register it, I am not disposed to accept the suggestion that it did not represent the mature or deliberate intentions of the testator. Defendant 1 deposes that he was present at the preparation of the draft for the second will and at its execution, but he denies having even talked to his brother about its contents or made suggestions or requests to him to increase the legacy in his own favour. Even his presence on the second evening, when the fair copy of the will was brought and signed, was according to him, merely casual and accidental. It is stated in Ex. II that defendant 1 was being sent to the Registrar with the application, but defendant 1 would prefer to associate Rajaramier with the visit of the Registrar. It seems probable that the witness is attempting to put forward this attitude of absolute non-intervention, if not of indifference, with a view to avoid the onus of proof becoming heavier on him, on the ground that he is not only a benefited party but also took a prominent part in the preparation of the will. The witness stated that on 1st September, his brother proposed to adopt the youngest son of the witness and that evening, the plaintiff questioned her husband what was to happen to her if the adopted son should drive her away, he adds 'hence my brother said he would execute a will to provide for her and also for our sister' Mr. Rajah Iyer contends that this conversation must have led the testator to re-arrange his dispositions.

20. Having given the argument my best attention, I fail to see any logical connexion between the testator's adoption idea (or the request made by the plaintiff in that connexion), and the new scheme of dispositions under Ex. I. It does not serve to explain the omission of the power to adopt from the second will or the increase of the bounty in favour of defendants 1 and 2 or the introduction of the bequest in favour of defendants 4 to 9. Defendant 1 would say that the brother told him of a request by defendants 4 to 9 for a gift of some property to them as they were poor, but those defendants have not come forward to speak to any such request. In this case, the decision was given by the Judge who had recorded the whole evidence. It has not been shown that he has misdirected himself on any material question. I see no sufficient reason for differing from his conclusion. I would therefore dismiss the appeals with costs of the plaintiff-respondent. As my learned brother has come to a different conclusion, the papers will be placed before the Chief Justice for directions, under Claulse 36 of the Letters Patent for the decision of the question raised by issue (1) in the case.

21. A special argument was urged in A.S. No. 201, as to the wording of the lower Court's decree so far as it deals with the costs payable by defendants 5, 6 and 9. At the end of para. 41 of the judgment, the learned Judge directed that 'not more than one-eighth of the total costs is to be recovered from any of defendants 5, 6 or 9.' The Court below seems to have thought that this would be a fair proportion for them to bear, as the bequest under Ex. I in favour of the group 4 to 9 defendants, was roughly of one-eighth of the whole estate. The decree, however, has been so drafted as to suggest that plaintiff was entitled to recover one-eighth of the costs from each of defendants 5, 6 and 9 making their total liability three-eighths. We do not think this was intended; but if it was intended, it seems to us that there was no justification for it. The decree will be amended so as to make it clear that (even if the appeal to this Court is dismissed), defendants 5, 6 and 9 will together be liable only for one-eighth of the costs awarded to the plaintiff in the lower Court, but the plaintiff will be at liberty to recover that one-eighth from any of these defendants.

Horwill, J.

22. The circumstances under which the will Ex. I came into existence have been set out in the judgment of my learned brother Varadachariar J. but as unfortunately I have not been able to draw the same conclusions from the evidence as he does, I have set out below my reasons for thinking that the judgment of the lower Court is wrong. The most important evidence is that of D.W. 1, the Registrar, who came to the house of the testator to register the will. He definitely states that he conversed with the testator and found him in a sane and sound condition of mind, and able to give rational answers to the questions put to him. D.W. 1 read out the will to the testator, who, in the opinion of the Registrar, was able to understand and follow what was read out, and who stated that it was correct and that he had executed it. The short deposition, Ex. III, given by the testator to D.W. 1 seems to me to be worth setting out in extenso; for many of the sentences could not be the result of a nod of the head to questions put by the Registrar and showed that the testator was fully aware of what he was doing. Ex. 3 is as follows:

I executed a will on 2nd September 1930. I have just presented the will for registration. The will just read out is the identical document. By the will, I bequeath my properties to my wife Rajathi Ammal and to my sister, Sadachi Ammal and dayadis as mentioned in the will. I am willing to register the will. I have been suffering from tuberculosis for the last one month and I am bedridden. Hence, I requested attendance at my residence, I revoke the previous will by this will.

23. I do not think it possible that the testator could have made such a statement if he had not fully understood the will and had not the strength of mind necessary to realise what he had done and was doing. The will was prefaced by an introductory paragraph to the effect that the testator thought that the terms mentioned in the earlier will were unsatisfactory and that he therefore revoked the will. In order to satisfy himself that there was no ground for supposing the will not to be the free act of the testator, the Registrar asked the plaintiff if she had any objection, and she replied that she had not. I see no reason at all to doubt the truth of a single statement that the Registrar has made. The learned Subordinate Judge suggests that some person may have impersonated the plaintiff; but I do not think that this suggestion is worthy of serious consideration. The Registrar identified her by her photograph; and her presence is also spoken to by D.W. 2.

24. The evidence of D.W. 1 is confirmed by that of D.W. 2, a registered medical practitioner with a good practice, who owns 16 acres of land under the Periyar. He was present at the registration, having been called as an identifying witness by the plaintiff's father. His deposition was a long one; and he stood the test of cross-examination extremely well. The learned Subordinate Judge considers that that portion of his evidence dealing with his professional treatment of the testator as an affront to the Court and absurd; but I cannot agree with him in this criticism. It does look as if D.W. 2 is not a very capable physician; but there is nothing in his evidence which is not reasonable. I understand that there is nothing improbable, for example, in his giving a prescription if his dispenser were absent. The learned Subordinate Judge seems to have come to the opinion that the testator was able to execute this document only by the help of drugs given by D.W. 2. In the first place, I see no reason why one should doubt the evidence of D.W. 2 that the medicine was given after the registration and was in tended as a mental, as well as a physical, restorative. The learned Subordinate Judge is certainly wrong in thinking that the medicine given by D.W. 2 would be given only to persons with weak hearts. Even if it be true that the medicine was given before the will was registered, and not afterwards, it would make little difference. The medicine given was a very moderate dose; and the only effect it would have would be that the testator would feel a little more alert both in mind and body.

25. The plaintiff has given an incredible story that she left her husband for the twelve hours during which this will was executed and registered. If it were true, it would show that the testator had a very good reason for giving her a smaller portion of his property than he had originally intended; but it seems most unlikely that when her husband was in such a serious state of health, she would go away and desert him. D.W. 1 not only stated that a woman there represented herself to be the wife of the testator, but he identified her from a photograph filed in Court. The evidence of D.W. 2 corroborates him in this matter and shows that the plaintiff's father was there also. Neither of these persons told the Registrar that at the time of execution, when the plaintiff must have been present, the testator was not in a fit state to know what he was doing.

26. The evidence of D.Ws. 1 and 2 proves, in my opinion, that the testator admitted execution of the will, that he understood what he had done, that he had sufficient strength of mind to conceive of an intention to dispose of his property in the way he did, and that he, therefore, had what is ordinarily known as a 'disposing state of mind' at the time of registration. The execution took place 12 hours earlier; and it is incredible that the testator was then in a worse condition than when the Registrar saw him; and he might well have been better. That the will was executed by the testator is not only shown by the direct evidence of defendant 1 (D.W. 3) and D.W. 4, who were present when the execution took place, but by the admission of the testator himself before the Registrar. D.W. 4 is an old friend of the family and apparently disinterested. He was present at the time of the partition between the brothers three years before, and then attested the partition deed. As against the evidence of D.Ws. 3 and 4 we have the evidence of P.Ws. 1 and 4. P.W. 4 deposes that he signed the document because he was threatened by defendant 3, an explanation which cannot for a moment be believed. He was driven away from the house later, by the defendants and might be deposing later, against them on that account. P.W. 1 is a more respectable witness and very little can be said against him. He was summoned in the first instance by the defendants; and they alleged that he was won over during the long interval that the lower Court allowed between the examination of D.Ws. 1 and 2 and those of the earlier plaintiff's witnesses. However that may be, he deposes that he was called to attest the document, that when he reached the house of the testator, he saw him lying there and in a very weak state, and that the testator signified to him by a nod of the head that he desired him to attest the will. Although P.W. 1 states that the testator could not talk much on the day of execution, yet he admits that when he saw the testator two days before, he was able to talk about things and understand what was said to him. The preparation and execution of the will was a trying ordeal for the testator; and it is not surprising that he should have been somewhat exhausted at the time of execution. According to the defendants' evidence, the discussion about the will began soon after noon. The testator looked into certain documents and dictated the draft. After the draft was faircopied, the various attestors were summoned and the document executed at about 10 o'clock on that night.

27. The conclusion drawn above from the evidence regarding the execution and registration is confirmed by what seems to be the probable condition of the testator's mind. The deceased was suffering from pulmonary tuberculosis, and although he became gradually physically weaker and died two days after the execution of the will, yet there is no reason to believe that he differed from other sufferers of that disease by being mentally feeble and unable to think about; the disposal of property. It is well known that sufferers from this disease remain mentally alert and in full possession of their faculties up to an hour or two of their death. Only a fortnight before he had personally gone to the Registrar's office to have the earlier will registered; and P.W. 1 as well as the witnesses examined for the defendants, say that he was taking an intelligent interest in his affairs not long before this will was executed. A point made by the learned advocate for the defendants which is not, I think, without significance, is that for the drawing up of the will in question, it was necessary to refer to the will earlier and to a payment of Rs. 2000 which had taken place only on the previous day. The defendants probably knew nothing of the payment of Rs. 2000; nor could they have procured a copy of the previous will during the lifetime of the testator, to have known the various registration particulars which find a place in the second will. The evidence of the plaintiff herself shows that she had possession of the will; and it is, therefore, argued that she must have been concerned in the drawing up of the new will. This deduction gains support from the statement of the plaintiff to the Sub-Registrar that she had no objection to the will.

28. The learned Subordinate Judge has made a great deal of the fact that a will had been executed less than a month ago, and registered only a fortnight before, in which the plaintiff was given a great deal more than she has been given now and the brother and sister very much less. He is of the opinion that there was a heavy burden cast upon the defendants of explaining why this change took place. It is impossible for the defendants to explain why the testator changed his mind. It is a matter of common experience that after a man has made a decision he often begins to doubt the wisdom of it and to wonder whether some other decision would not have been better. It seems not at all strange to me that a Hindu husband without children should leave sufficient to his wife for her maintenance and should give the rest of his property to his brother. Under the second will, the wife is still the second biggest legatee. Defendant 1, the brother of the testator, under the new will, gets Rs. 11,800, the wife, Rs. 7600, the sister, Rs. 4000 and six cousins together Rs. 3300. By the first will, although the widow was to have Rs. 21,000, she was empowered to adopt; and presumably, the testator contemplated the bringing into existence of an adopted son who would eventually enjoy his property.

29. The second will shows that he had given up the idea of adoption; and if that were so, there would not be the same reason for leaving such a large sum of money in the hands of his widow, a thing which most Hindu villagers are disinclined to allow. The defendants contend that after the first will was executed, the testator thought of his own brother's youngest son as a suitable boy to be taken in adoption. The wife demurred that if that son were adopted he might take all the property and she be left with nothing. It is said that it is for that reason that the second will was drawn up which, as already indicated, the plaintiff and her father seemed to accept. Whether this story be true or not, there is nothing so strange in this change of disposition as would constrain a Court to conclude that the only reasonable explanation for this change of opinion was that the testator was not in a sound disposing state of mind when he drew up the second will. I find myself unable to draw that conclusion from this change of opinion. The plaintiff and some of her witnesses stated that the testator and his brother were not on good terms; but a photograph was filed in Court of a group consisting of the testator, the plaintiff, and three children of defendant 1, his brother. The plaintiff is there actually holding in her arms the youngest child, who is said by defendant 1 to have been intended to be adopted to the testator. Defendant 1 states that this photograph was taken a day or two before the execution of the second will, at a time when this adoption was contemplated; but even if it be true, as the plaintiff states, that the photograph was taken two months earlier, the existence of such group photograph does show that the relationship existing between the testator and his brother was not in any way strained.

30. A great deal has naturally been made of the fact that out of the six attestors and a writer, only one, D.W. 4, has been examined on the side of the defendants. The plaintiff has examined two, the other four have not been examined on either side. This omission does, no doubt, show that the defendants, for some reason or other, have been keeping something back from the Court - probably the part they played in the discussions preliminary to and at the drafting of the second will; but as there is in this appeal no question of undue influence, if; seems to me that this omission on the part of the defendants should not allow one to lose sight of the simple question before the Court, whether the testator was in a sound disposing state of mind when he executed the document. If the testator had been suffering from a disease that impaired the mental faculties, if the earlier will had benefited a number of persons and the later one only the person under whose constant care he was, there might be some ground for suspicion that the testator was not in a sound disposing state of mind; but I can think of no reason for such a suspicion in the circumstances of this case. I have not thought it necessary to refer to any of the many reported cases cited before us because the question we have to answer is a very simple one and because there is no disagreement between the learned advocates who have argued this case before us as to the meaning of 'a disposing state of mind.' The circumstances under which the wills were executed in the cases cited are all very different from what they are in the case before us; and the dicta extracted from them have been accepted without discussion by both sides.

31. I cannot leave this case without referring to the very objectionable procedure adopted by the learned Subordinate Judge in the trial of this suit. The examination of eleven witnesses - many of them quite short ones - was spread over a period of twelve months. D.Ws. 1 and 2 were examined on 17th December 1931. D.W. 3 was examined on four occasions extending over a period of seven weeks from 27th February 1932 to 12th April 1932. D.Ws. 4 and 5 were not examined until 13th August 1932, eight months after the examination of D.Ws. 1 and 2. The examination of the plaintiff's witnesses began on 26th August 1932; and until 12th December 1932, no two witnesses were examined on the same date. This was a scandalous procedure that put a premium on perjury. As the parties had plenty of opportunity to see how the suit was progressing, both sides must have striven to persuade the witnesses to speak to what they wished, the plaintiff having the great advantage of examining her witnesses after those of the defendants. The very unsatisfactory nature of the evidence can largely be laid, in my opinion, at the door of the learned Subordinate Judge. The judgment was not pronounced until 6th March 1933, fifteen months after the examination of D.Ws. 1 and 2. Under these circumstances, the fact that the learned Subordinate Judge saw D.Ws. 1 and 2 in the box gave him very little advantage, if any, over the Appellate Court. For the reasons set out by me above, I think that the will, Ex. I, was executed while the testator was in a sound disposing state of mind and that the appeal should therefore be allowed with costs. [The appeal again coming on before Pandrang Row J. for opinion, the Court delivered the following judgment.]

Pandrang Row, J.

32. These appeals come up before me under Clause 36 of the Letters Patent. The point on which the learned Judges differed was whether the testator was in a sound disposing state of mind when he executed the will (marked Ex. I) on 2nd September 1930. The trial Court held that the existence of a sound disposing state of mind had not been established and Varadachariar J. saw no sufficient reason to differ from the conclusion of the trial Judge, whereas Horwill J. was of opinion that the finding of the learned Subordinate Judge is wrong and that it had been established that the testator was in a sound disposing state of mind when he executed the will. On 7th August 1930, the testator had executed a will (Ex. B) and had it registered after personally attending at the Registrar's office on 19th August 1930. The present will, namely Ex. I, was executed on 2nd September, that is to say about a fortnight after the registration of the earlier will. It was never contended at any time that the previous will, Ex. B, was not executed when the testator was in a sound disposing state of mind. In fact the previous will is referred to in Ex. I and is formally revoked thereby. The subsequent will, Ex. I, alters in very material particulars the dispositions made in the earlier will, Ex. B, and, generally speaking, the dispositions in Ex. I are more favourable to the divided brother of the testator, namely defendant 1, and less favourable to his wife, the plaintiff in the suit. The earlier will practically left the bulk of the property to the wife who was also given authority to adopt. In the second will the wife gets only about a quarter of what she got by the earlier will and the bulk of the property goes to the brother, defendant 1. Ex. I also increases the bequest in favour of the sister of the testator, namely, defendant 2 and makes a fresh bequest for the first time in favour of comparatively remote relations, defendants 4 to 9.

33. The short interval between the earlier will and the later will and the important character of the changes introduced by the later will necessarily create an atmosphere of suspicion and increase the burden which lies on the party seeking to propound the will of proving that it was executed at a time when the testator was in a sound disposing state of mind. It is not disputed before me that this circumstance, namely the important changes brought about within a short interval of time by the later will, does not legitimately give rise to suspicion as regards the later will, or that it does not appreciably add to the burden that lies on the defendants who support the later will. It is, however, claimed that this burden has been discharged entirely, and reliance is placed particularly on the evidence of D.Ws. 1 and 2 and also on some other circumstances which appear in the evidence. As regards the evidence of D.Ws. 1 and 2, after going through the same I see no sufficient reason to differ from the conclusion arrived at by the learned Subordinate Judge who heard the evidence. In other words, the evidence of D.W. 1, the Sub-Registrar has to be accepted generally to the extent to which it goes, whereas the evidence of D.W. 2 is not sufficiently reliable and is not entitled to acceptance as it stands. I have no doubt that D.W. 2 was brought in specially for the purpose of preparing the testator for the interview which was necessary in connection with the registration of the will at the residence of the testator. There is no doubt in my mind that D.W. 2 gave the testator what is described by the learned Subordinate Judge as a triple cardiac stimulant in order to prepare him for the interview with the Registrar. He was brought in for the purpose of enabling the testator to go through the formalities of registration and also for the purpose pf inducing the Sub-Registrar to believe that everything was all right. The Sub-Registrar's own evidence does not really establish the fact that the testator was in a sound disposing state of mind even at the time of the registration and still less that he was in that state at the time of the actual execution of the will.

34. The mere fact that the testator was able to answer a few leading questions does not suffice to show that he was really capable of knowing the nature of the dispositions made in the will that was being registered. It may be that the will, except the schedules, was read to the testator by the Sub-Registrar and it may be that the Sub-Registrar was of opinion that the testator understood the contents of the will, but the latter is only a question of opinion, and there is no guarantee that the Sub-Registrar's opinion that the testator understood the contents of the will is correct, having regard to his extremely weak physical condition at the time. There can be no doubt from the evidence of the Sub-Registrar himself, apart from the other evidence in the case, that at the time of the registration' the testator was so weak as to require assistance in order to sit on his cot and also in lying down after the signatures were affixed in token of registration. The testator died within about 40 hours after the registration and he had been suffering from a serious illness for at least two months. In these circumstances, it is impossible to regard the registration as being equivalent to proof of capacity for making a will. The evidence regarding the actual execution which has been adduced on the side of the defendants is practically worthless. Only one attestor out of six has been examined on their side and the writer has not been examined though he is obviously an important witness, being the writer not only of the later will but also of the earlier one. The evidence of the single attestor examined on the side of the defendants is not reliable and on his own showing he was not present when the preliminaries were discussed. He appears to have been present only at a later stage and apparently he knew nothing more than that the testator signed his name to the will or admitted that he had signed it. On the other hand, two attestors have been examined on the side off the plaintiff and their evidence shows that their signatures were obtained by some pressure or inducement and that they were not really present when the testator signed the will. One of those witnesses, P.W. 1, is a very respectable man and there is really no reason to reject his evidence. The omission to examine the other attesting witnesses and the writer has not been satisfactorily explained by the defendants. The attestors must have been selected by those who took part in getting the will executed and among them defendant 1 as well as defendant 3 were prominent. Defendant 3 himself has not been examined though he was present during the trial. No reason is given for his omission to go into the box to support his case. Failure to examine so many of the attesting witnesses and the writer makes the suspicion which surrounds the later will much stronger than it other wise would be. There is no reason why so many persons should be unwilling to give evidence if the will had been properly executed by the deceased when he was in a sound disposing state of mind.

35. The evidence of defendant 1 is in my opinion too interested and unreliable to be accepted. His story that he took no part in inducing the testator to change his will cannot be believed, and I have no doubt that it must have been at his instance and owing to his persuasion, though such persuasion might not amount to coercion or undue influence, that the new will was executed by the testator when he was physically too weak to form his own opinion in the matter. There is no suggestion that there was any unpleasantness between the testator and his wife at any time and in particular during the interval between 19th August and 2nd September. The explanation given for the change in the dispositions cannot be accepted. It is obviously a figment of the imagination. It is most unlikely that the new will would have been executed in order to soothe the plaintiff who had some doubts as to what her own position would be if an adoption took place. In short, there can be no doubt in this case that the persons who were intended to be benefited by the new will were present at the time the new will was brought about and that the testator being surrounded by these relations of his was unable on account of his physical weakness due to his prolonged illness to form his own opinion as to what dispositions he should make, and that he was really not in a fit state of mind to make a will of his own. What happened was that a will was made for him by defendants 1 and 3 and in his weak state he affixed his signature thereto without being able to apply his own mind to the necessity of changing his former will or to the propriety of the dispositions made in the new will. It was argued before me that the particular reference made to the old will as well as to the payment of Rs. 2500 in cash by the new will clearly show that the new will must have been the result of independent volition on the part of the testator.

36. I am unable to accept this contention. It is possible that a copy of the will had been kept by the writer and that the note made by the registration authorities on the original will was also copied into the draft. Even otherwise, the will was obviously available in the house and could have been got at by the first or third defendant. The reference to Rs. 2500 is extremely vague. It is not proved that such a sum was paid in cash by the testator to his wife during, his lifetime. All that is proved is that a sum of Rs. 2000 was paid on 22nd August 1930. It may be that information about some payment was known in some way or other to defendant 1 or defendant 3, and a lump, sum like Rs. 2500 was mentioned in the new will with a view to minimize the magnitude of the change made so far as the wife was concerned by the new will by including in the bequest to the wife not merely a portion of the property bequeathed to her by the earlier will but also a lump sum of Rs. 2500 in cash alleged to have-been paid to her by the testator. As regards the bequest in favour of defendants 4 to 9, I do not think that by itself is a guarantee-that the later will was executed as the result of independent volition on the part of the testator. In the circumstances it was perhaps considered necessary that all possible opposition except that of the wife should be avoided, and the bequest of a comparatively small sum of money to defendants 4 to 9 was probably dictated by this motive.

37. On the whole therefore after careful consideration of the evidence and the probabilities in the case, I see no reason to differ from the conclusion arrived at by the learned Subordinate Judge who heard the evidence in the case, and I entirely agree with Varadachariar J. that there is no sufficient reason made out for interfering in appeal with the finding of the learned trial Judge on a question of fact like this. It must follow from this that the appeals must fail. They are accordingly dismissed with costs.


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