H. Venkatachala Iyengar vs B. N. Thimmajamma and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 18 of 1955

Decision Date: 13 November 1958

Coram: P.B. Gajendragadkar, A.K. Sarkar

In this matter the Supreme Court examined the dispute between H Venkatachala Iyengar, who was the petitioner, and B N Thimmajamma together with other respondents. The judgment was delivered on 13 November 1958. The case was argued before a bench comprising P B Gajendragadkar and A K Sarkar. The official citation of the decision is reported as 1959 AIR 443 and also appears in the Supreme Court Reporter Supplement 1 at page 426. Subsequent citations of the judgment are recorded in several later reports, including R 1962 SC 567, F 1964 SC 529, F 1965 SC 354, F 1971 SC 2236, F 1974 SC 1999, F 1977 SC 63, R 1977 SC 74, R 1982 SC 133, RF 1987 SC 767, F 1990 SC 396, E R 1990 SC 1742, and the decision is noted under the heading “Will—Mode of proof—Onus—Suspicious circumstances—Removal of such suspicion, if part of the initial burden on the propounder” in the Indian Evidence Act 1872, sections 45, 47, 67, 68, and the Indian Succession Act 1925, sections 59 and 63.

The headnote of the judgment explained that the method of proving a will ordinarily does not differ from the method of proving any other document, except for the special attestation requirement prescribed in section 63 of the Indian Succession Act. Proof of a will, like proof of any document, cannot be mathematically precise; therefore the appropriate test is whether the evidence satisfies a prudent mind. The onus of proof lies with the party who propounds the will. In the absence of any suspicious circumstances surrounding the execution of the will, the demonstration of testamentary capacity and the testator’s signature, as required by law, may be enough to satisfy the onus. However, if suspicious circumstances exist, the propounder must explain those circumstances to the satisfaction of the Court before the will can be accepted as genuine. When a caveator alleges undue influence, fraud, or coercion, the burden of proving such allegations rests on that caveator. Even where no explicit plea of undue influence is made, if the surrounding facts give rise to doubt, the propounder must satisfy the conscience of the Court. Determination of what constitutes suspicious circumstances must be made according to the facts of each case. If the propounder plays a prominent role in the execution of a will that confers substantial benefits upon him, that role itself is a suspicious circumstance, and the Court should examine the evidence with an open, yet vigilant and cautious, mind.

The judgment referred to several authorities for support, including Harmes v. Hinkson (1946) 50 C.W.N. 895, Fulton v. Andrew (1875) L.R. 7 H.L. 448, Barry v. Butlin [1838] 2 MOO. P.C. 480, Vallasamy Servai v. Sivaraman Servai (1929) L.R. 57 I.A. 96, and Sarat Kumar Bibi v. Sakhi Chand (1928) L.R. 56 A. 62. The Court noted that the present appeal arose from a suit instituted by the appellant, who was the sole executor of a will, seeking a declaration that the testatrix owned certain properties and was therefore entitled to dispose of them by will, together with consequential relief to give effect to the bequests made by her.

The appellant asserted that the testatrix, Lakshmamma, owned certain properties and therefore possessed the authority to dispose of those properties by means of a will. Accordingly, the appellant prayed for reliefs that would give effect to the bequests purportedly made in that will. Evidence disclosed that the appellant had taken a prominent, and possibly decisive, role in the execution of the will, which was dated 22 August 1945 and contained substantial bequests in favour of his own sons. Nevertheless, the record did not contain any proof that the draft of the will had ever been approved by the testatrix, nor that the entire will had been read to her so that she was aware of its contents. The trial court had initially decreed in favour of the appellant, but the Mysore High Court set aside that decree and dismissed the suit. The appellate court held that the High Court was correct in overturning the trial court’s finding that the will had been duly and validly executed. The appellate court further held that the trial court erred in concluding that the presence of the testatrix’s signature could create a presumption that she understood the contents of the will. In reaching this conclusion, the court explained and approved the principles articulated in Surendra Nath Chatterji v. Jahnavi Charan Mukherji, (1928) I.L.R 56 Cal. 390.

The appeal, identified as Civil Appeal No. 18 of 1955, originated from the decree dated 20 March 1951 issued by the Mysore High Court in Review Appeal No. 155 of 1947‑48, which itself arose from the judgment and decree of 19 December 1947 rendered by the Subordinate Judge of Mysore in Suit No. 44 of 1946‑47. Counsel for the appellant were S.K. Venkataranga Iyengar and K. Keshava Iyengar, while the respondents were represented by A.V. Viswanatha Sastri and K.R. Choudhry. The judgment was delivered on 13 November 1958 by Justice Gajendragadkar. The factual matrix of the appeal involved the appellant acting as the sole executor of the alleged will executed by Lakshmamma on 22 August 1945. In the original suit, the appellant sought a declaration that Lakshmamma was the owner of the properties listed in the schedule attached to the plaint and, consequently, had the power to dispose of them by will, together with reliefs to enforce the bequests claimed under the will. The schedule enumerated five items: the first three items described agricultural lands measuring five, four and four acres respectively in Hampapura village; the fourth item comprised nine acres of land in Arjunahalli village; and the fifth item was a vacant site in Hampapura village. According to the plaint, the will conferred only a life interest in the first two items upon respondent I, with the remainder of those items to vest in respondents 2, 3, 4 and 5 upon her death. Since respondent I was in possession of all five items, the appellant prayed for a decree of possession against her concerning items 3, 4 and 5 and for a declaration confirming respondent I’s limited life interest in items 1 and 2.

In the present suit the appellant sought a decree for possession of certain lands and a declaration that he was entitled only to a life interest in the first two items of the schedule. The appellant also claimed recovery of Rs 2,106 that respondent 1 had allegedly collected as income from the suit lands, and prayed for an order directing respondent 1 to pay current mesne profits. Before analysing the pleadings, the Court found it necessary to set out the material facts concerning the parties’ relationship that were not contested. Annaji Iyengar died in July 1903, leaving an adopted son, the present appellant, and two daughters: Gundamma alias Ranganayakamma, who was still alive, and Lakshmamma alias Achamma, who is said to have executed the will that is the subject of the suit and who died on 26 September 1945 at Mandya. Respondents 2, 3 and 4 are the appellant’s three sons. Lakshmamma had been married to Sadagopalachar, who died in December 1908. The couple’s three children were: a son, Narayana Iyengar, who died on 14 January 1944 without issue, leaving his widow as respondent 1; and two daughters, Thirumalamma and Yadugiramma, both of whom are deceased. Thirumalamma was married to G Parthasarathy Iyengar and bore a son of weak intellect, who died during the pendency of the litigation, and three daughters, Neelu, Jaya and Padmini. Yadugiramma married Kalbagal Garudachar and had a son, Narasimha Iyengar, who is respondent 5, and a daughter, Lilly. Kalbagal Garudachar also had a son, S G Kalbagal (referred to as Junior Kalbagal), from his first wife; Jaya, one of Thirumalamma’s daughters, was married to Junior Kalbagal. The appellant’s claim under the will was opposed by respondent 1, while respondents 2 to 5 did not appear in the proceedings.

The appellant’s plaint alleged that Annaji Iyengar had made a gift of the properties described as items 1 and 2 to Lakshmamma and Sadagopalachar jointly, as evidenced by a registered deed of gift dated 16 February 1902 (Exhibit D). The plaint further asserted that Annaji Iyengar had executed a will on 31 August 1901 (Exhibit B2(a)) bequeathing to Lakshmamma and Sadagopalachar hypothecation bonds worth Rs 10,320 as a gift, with an explicit stipulation that the survivor of the legatees should take the whole of the bequest by survivorship. The appellant contended that Sadagopalachar, who was of modest means, had relinquished his petty job in the registration department in order to manage the properties he and his wife received from Annaji Iyengar. In the course of that management, Sadagopalachar is said to have used the cash received from the bequest of Rs 10,320 to purchase additional immovable properties, which are identified as items 3 and 4. Because Sadagopalachar predeceased his wife Lakshmamma, all of his rights in the properties acquired under the gift deed and those subsequently purchased were, according to the appellant, transferred to Lakshmamma alone by operation of survivorship. Consequently, the appellant argued that Lakshmamma became the absolute owner of those properties. The appellant further maintained that even if the principle of survivorship did not apply, Lakshmamma’s son Narayana Iyengar would have acquired only a half‑share in the properties covered by the gift deed, and that he had, during his lifetime, sold considerable portions of his parents’ estate for values far exceeding his half‑share, leaving Lakshmamma with the remainder as her absolute property. On either basis, the appellant claimed that Lakshmamma possessed the full title to all suit properties, was therefore competent to make a will, and that the will she executed represented her last testament, made voluntarily and while she was of sound mind. Respondent 1 denied the appellant’s claim and contested the assertions regarding Annaji Iyengar’s gift and the subsequent succession of title.

In this case the appellant asserted an alternative theory concerning the ownership of the disputed properties. He contended that even if the rule of survivorship were not applicable, the appellant’s son, Narayana Iyengar, would have acquired only a half‑share in the property as a result of the deed of gift. The appellant further alleged that during his lifetime Narayana had sold a considerable portion of the property belonging jointly to his father and mother for an amount that far exceeded the value of his half‑share. Consequently, the appellant claimed that the remaining portion of the property, which corresponded to the half‑share that should have belonged to Lakshmamma, had become her absolute property. On the basis of this alternative allegation the appellant sought to establish that Lakshmamma held an absolute title to all the properties that were the subject of the suit.

Relying on this assertion, the appellant prayed that Lakshmamma was entitled to execute a will and that the Court should grant a declaration in her favour along with any consequential relief required to give effect to the provisions and dispositions contained in that will. The appellant further maintained that the will he had produced was the last testament of Lakshmamma, that it had been executed voluntarily, and that Lakshmamma was of sound mind and possessed a disposing mental capacity at the time of its execution.

Respondent I challenged every aspect of the appellant’s claim. She denied that Annaji Iyengar had ever made a will dated 31 August 1901, and she also repudiated the allegation that Lakshmamma and Sadagopalachar had received moveable assets worth Rs 10,320 under such a will. According to her version, the deed of gift (Exhibit D) did not contain any provision for the devolution of interest by survivorship. She further pleaded that Lakshmamma had transferred all of her interests in the properties covered by the deed of gift to her husband, Sadagopalachar, thereby making him the sole owner of those assets.

Respondent I also rejected the claim that the properties later purchased by Sadagopalachar, specifically items 3 to 5, had been bought with the money bequeathed to him and his wife by Annaji Iyengar. She asserted that Sadagopalachar had funded those purchases entirely from his own resources. Moreover, she argued that after the death of Sadagopalachar’s father, her own husband, Narayana Iyengar, had become the absolute owner of all the properties, which meant that Lakshmamma lacked any legal capacity to make a will concerning them.

Continuing her defence, Respondent I alleged that the will presented by the appellant was neither genuine nor valid, and she contended that at the material time Lakshmamma was not of sound and disposing mind. She further claimed that the will had been fabricated through the machinations of the appellant and consequently disputed the appellant’s standing to institute the present suit.

In response to these pleadings, the learned trial judge framed fifteen issues for determination. After examining the evidence, the judge held that the will allegedly executed by Annaji Iyengar on 31 August 1901 was genuine and valid, and that the rule of survivorship applied between the legatees with respect to the properties conveyed by that will. However, the judge found that the rule of survivorship did not apply to the properties gifted to Sadagopalachar and Lakshmamma under Annaji’s deed of gift (Exhibit D), which he also held to be genuine and valid. Regarding the properties subsequently purchased by Sadagopalachar, the judge remarked that “in fairness to” the parties, a further assessment of the source of funds used for those purchases was necessary.

The Court observed that the parties sought to establish that the various survey numbers described in items 3 and 4 had been purchased by Sadagopalachar using the joint income generated from the properties bequeathed to him and his wife by Annaji, as well as from income derived through a partition between himself and his co‑parceners (Ex. F). It was further held that the acquisitions made by Narayana Iyengar were funded from the income of the properties belonging to his father and his mother. The learned judge rejected the plaintiffs’ assertion that Narayana Iyengar had alienated his properties in a manner equivalent to his entitlement under Annaji’s gift deed (Ex. D), and instead concluded that Narayana Iyengar remained the owner of those properties which had vested in his father. Consequently, the judge determined that Lakshmamma possessed a half‑share in all the properties that formed the subject of the suit, and therefore she was competent to execute a will concerning that share. Turning to the question of the will’s execution by the appellant, the judge found that the will (Ex. A) was genuine and valid insofar as it related to the portion belonging to the testatrix. The judge also held that the suit was maintainable, was not barred by limitation, and had been filed correctly. On the basis of these findings, the judge declared that Lakshmamma was the full owner of a fifty‑percent share in the scheduled properties, while respondent I, under the will, possessed only a life interest in that half‑share concerning items 1 and 2. As a result of this declaration, the decree directed respondent I to deliver possession of Lakshmamma’s half‑share in items 3, 4 and 5 to the appellant, and ordered respondent I to pay the appellant a sum of Rs 1,050 out of past mesne profits recovered by her. An inquiry into future mesne profits was also ordered under Order XX, rule 12. Because the appellant succeeded only with respect to half of the disputed properties, the decree required each party to bear its own costs. Respondent I appealed this decree to the High Court of Mysore, and the appellant filed cross‑objections. The High Court held that the appellant had failed to demonstrate that Lakshmamma, when she allegedly executed the will, was of sound mind and disposing capacity, or that the instrument truly reflected her intentions. In light of that finding, the High Court observed that it might be unnecessary to consider the remaining issues in the case. Nonetheless, the High Court proceeded to state its conclusions on two of those issues, holding that the appellant had wholly failed to prove that the money used for purchasing items 3, 4 and 5 was derived from any bequest under Annaji’s will (Ex. B2(a)) or from the incomes of the properties covered by the gift deed (Ex. D).

The High Court held that no bequest under Annaji’s will (Exhibit B2(a)) or any income from the gift deed could be traced to Lakshmamma. Accordingly, the Court concluded that because she had no bequest or income, Lakshmamma could not claim any share in those properties. On the other hand, the High Court indicated its inclination to accept the plea raised by respondent 1 that Lakshmamma had transferred all her interest in properties covered by deed of gift to her husband Sadagopalachar. Because, in its view, Lakshmamma never asserted any interest in those properties, the Court found that there was considerable force in respondent 1’s argument. The Court therefore concluded that she must have relinquished her interest and waived her rights in favour of her husband. The High Court also thought that the learned trial judge had not fully considered all the material relevant to this point. Consequently, the Court held that the trial judge erred in deciding that, at the relevant date, Lakshmamma possessed a subsisting interest in half the share of the suit properties known as items 1 and 2. Having indicated its decision on these two issues, the High Court observed that even if it had found in favour of the appellant on them, such a finding would not have aided him. The Court explained that the appellant’s case would still fail because the will he relied upon was not proven to be Lakshmamma’s last will and testament. As a result, the appeal filed by respondent 1 was allowed, the cross‑objections raised by the appellant were rejected, and the appellant’s suit was dismissed. In the circumstances of the case, the High Court made no order as to costs, leaving the parties to bear their own expenses. The appellant subsequently applied for and obtained a certificate from the High Court stating that the decision under appeal was a reversal involving a claim over properties valued at not less than Rs 20,000. Pursuant to that certificate, the High Court ordered that the appeal to this Court be admitted, and consequently the present appeal reached this Court. Since the appellant’s contention challenged the High Court’s finding that the will was not proved to be Lakshmamma’s last will and testament, the Court found it necessary to set out main features of the will. It also needed to consider the evidence produced by the appellant to prove the execution of the will. At the relevant time, Lakshmamma was about 64 years old and normally resided at her home in Hampapur. Approximately one month before the execution of the will, she travelled to Mandya to attend a marriage ceremony at the house of Junior Kalbagal. After the marriage concluded, she would normally have returned to Hampapur, but she fell ill and consequently extended her stay with Junior Kalbagal. The appellant’s case was that Lakshmamma had informed him that she wished to execute a will and had given him.

The appellant testified that approximately one year before the execution of the will, Lakshmamma had a conversation with him in which she gave him specific instructions concerning the preparation of a will. When Lakshmamma later fell ill at Mandya, the appellant visited her and she urged him to draft the will according to those earlier instructions. Consequently, the appellant prepared a draft in Mysore a day prior to the will’s execution. On the morning of 22 August 1945 he travelled by train to Mandya and, between about eleven and eleven‑thirty a.m., the will was prepared. The appellant possessed the draft and dictated its contents to the scribe Chokkanna, identified as PW 3, who then wrote the will. After the scribe finished, he carried the written document to the adjoining room where Lakshmamma lay in bed. The will was read aloud to her and she signed it in five separate places, as shown in Exhibits A‑1 to A‑5. The execution was subsequently attested by two witnesses, Krishnamurthy Rao (PW 1) and Narasimha Iyengar (PW 2). Later that same day, the Sub‑Registrar arrived at the residence of Junior Kalbagal and, in his presence, the will, marked as Exhibit A, was formally registered. At roughly the same time Lakshmamma also executed a power of attorney in favour of the appellant, identified as Exhibit EE, which was likewise attested and registered. To support his claim that the will had been validly executed, the appellant examined himself (PW 7), the two attesting witnesses (PW 1 and PW 2), the scribe (PW 3) and Junior Kalbagal (PW 4).

The will itself is a comparatively long document, and its English translation extends over eight printed pages. Although the substantive dispositions occupy only a small portion of the text, the will contains extensive reasoning in support of the testatrix’ assertion that she was entitled to devise all of the properties mentioned therein. The document opens with a recital concerning Lakshmamma’s illness, wherein she states that she felt it necessary to set out certain matters clearly so that no obstacles or objections might arise after her death, and therefore she had them written in detail. The will then refers to a gift deed executed jointly by Annaji in favour of the testatrix and her husband Sadagopalachar, as well as to Annaji’s own will, under which hypothecation bonds valued at Rs 10,000 were bequeathed to both of them. It further observes that Sadagopalachar possessed only a house and a carriage‑shed and owned no additional ancestral property; even that house was described as being of very ancient origin and in a dilapidated condition. According to the will, Sadagopalachar held a modest government post which he relinquished in order to reside in Hampapur and manage the property received as a gift from Annaji. The testatrix expresses her opinion that he was likely looking after her share of the property in addition to his own and that such cooperation was natural between husband and wife. Subsequently, the will mentions the purchase of certain lands and asserts that the funds received from Annaji were employed for those acquisitions. It also records the death of Sadagopalachar in 1908 and outlines the management of the properties during the lifetime of Narayana Iyengar, the son of the testatrix. The will states that, while Narayanan was still a minor, the testatrix sold some properties on the advice and assistance of her brother‑in‑law Srinivasa Iyengar in order to settle debts, “without considering whether it was my share or my husband’s share”; she also sold

The will described Sadagopalachar’s residence as being in a dilapidated condition. It explained that Sadagopalachar had held a modest government post, which he resigned in order to relocate to Hampapur and to oversee the property he had received as a gift from Annaji. The testatrix wrote that, in her view, Sadagopalachar was probably looking after her share of the property in addition to his own and was improving it, and she noted that such mutual consideration between husband and wife was natural. The will then turned to the subsequent acquisition of certain lands, stating that the sums received from Annaji by the couple were employed to purchase those lands. It recorded Sadagopalachar’s death in 1908 and narrated how the properties were managed during the lifetime of Narayana Iyengar, the testatrix’s son. According to the will, while Narayana was still a minor, the testatrix sold some properties on the advice and with the assistance of her brother‑in‑law Srinivasa Iyengar in order to meet debts, without determining whether the sold assets belonged to her share or to her husband’s share. She also sold gold and diamond ornaments to satisfy urgent family needs. After Narayana attained majority, he began to manage the estate together with Srinivasa Iyengar.

When Narayana reached adulthood, he desired to construct a residence in Mysore and consequently sold certain wet lands situated at Sarvamanya Gaudhanahalli village. The will observed that Narayana had no children of his own, yet he spent generously on the marriages of the three daughters of his younger sister Thirumalamma. He provided moderate ornaments for each of them and gave them pin money together with some wet lands located at Arjunahalli village. Narayana also purchased and conveyed wet lands in the same village to the son of his second younger sister, Kalbagal Narasimha Iyengar, and to Singamma and Lalithamma. The will further noted that Narayana’s purchases were formally recorded in his name, although the beneficial right to those properties vested in the testatrix. It added that Narayana, having no issue, treated the children of his younger sister as his own, diligently caring for their education, marriages and other auspicious occasions. After disposing of his holdings for the benefit of those children, Narayana concluded that, as the sole son of the testatrix, her share of the property was sufficient for his own maintenance and that of his wife, and therefore he harbored no anxiety regarding that matter. In effect, the will alleged that the alienations carried out by Narayana left him without any remaining share in the estate, causing the residual properties to belong exclusively to the testatrix. The will subsequently referred to an insurance payout of Rs. 4,000 that was paid to respondent 1 on Narayana’s death and mentioned that, concerning the illness that led to his demise, the testatrix herself had provided separate funds for his medical and family expenses and had given Narayana Rs. 3,000, which was deposited with her brother‑in‑law, together with a reserve bank share of Rs. 500 to enable him to purchase a house in Mysore.

The testatrix provided separate funds specifically for Narayanan’s medical and family expenses, showing her concern for his welfare. She also gave Narayanan Rs 3,000, which was deposited with her brother‑in‑law, and an additional Rs 500 from a Reserve Bank share to enable him to purchase a house in Mysore. The will then refers to the respondent affectionately and states that the testatrix was making a life‑time bequest of items I and II in her favour so that the respondent could live without difficulty. The will declares, “Except me,” that no other person has any right whatsoever to the scheduled properties at all. It further states that the properties should go only to those intended by her after death and that there is no reason for them to pass to her agnates or any others. She emphasizes that she is at full liberty to make dispositions in accordance with her own desire and wishes. After making these elaborate averments, the will proceeds to list the specific dispositions of items I through V, detailing the beneficiaries and conditions attached to each. Items I and II are given to the respondent for life, with the stipulation that she shall have no right of hypothecation, sale, gift, exchange or any similar act, nor any authority to create liabilities in favour of others. Upon her death, respondents numbered two through four become entitled to receive item I, whereas item II is specifically bequeathed to respondent five as a separate legacy. Respondent five is described in the will as an heir after the testatrix’s death and is authorised to perform all her ceremonial duties. Item III is bequeathed to respondent five, and item IV is given to respondents two, three and four.

Of the fifteen acres of land that constitute item IV, nine acres are subject to a charge in favour of certain legacies and charities named in the will. The legacies include payments of Rs 500 each to the testatrix’s eldest daughter’s third daughter Padminiamma, to the eldest daughter’s son Thirumalachar, to Sudhakalyani (the daughter of the eldest daughter’s second daughter Jaya), and to Nagendra, the son of Neelamma, the eldest daughter of the testatrix’s eldest daughter. Additionally, Rs 1,000 must be expended to conduct services in the Sannadi of Lakshminarayanaswamy at Hampapur on the dates of death of the testatrix’s husband, her son and herself. A sum of Rs 500 is to be endowed for the Nandadipa service in the name of Narayanan at the Sannadi of Thirupati Venkataramanaswami, and another Rs 500 for a similar service in the name of Sadagopalachar at the Sannadi of Channakeshavaswami in Belur, the family’s place in Hassan District. An amount of Rs 1,000 is specifically earmarked to provide scholarships for poor students who qualify under the criteria set by the testatrix. In total, a sum of Rs 5,000 must be expended to satisfy all the legacies and charitable obligations enumerated in the will. The will directs that if respondents 2 to 4 fail to make these payments within three years after the death of the testatrix, the appellant who is appointed the executor under the will shall sell the charged lands at a reasonable price after the three‑year period and apply the proceeds to the charitable works and legacies. The will also expressly states that after the testatrix’s death the entire document shall remain in the possession of the appellant who is the appointed executor. It further declares that the testatrix had not executed any prior will, and that any earlier will, if it existed, was cancelled by the execution of this present will. The will repeats the assertion of the testatrix’s title, noting that while Narayana Iyengar was alive he had sold about seventeen acres of land situated at Adagur and other places to purchase lands at Arjunahalli village for his sisters’ children, thereby giving the testatrix full liberty to dispose of the scheduled properties, which were her own.

The will provides that if the respondents numbered two to four fail to make the prescribed payments within three years after the death of the testatrix, the executor—the appellant—shall, after the expiry of that three‑year period, sell at a reasonable price the lands that have been charged for the purpose of those payments. The entire amount realised from such sale must be applied to carry out the charitable works specified in the will and to give effect to the legacies mentioned therein. The document further declares that after the death of the testatrix the original will shall remain in the possession of the appellant. It also states that the testatrix had not executed any earlier will; and if any earlier will had been made, it was deemed cancelled by the execution of the present will. The will reiterates the testatrix’s title to the property, explaining that while Narayana Iyengar was alive he had sold approximately seventeen acres of land situated at Adagur and other locations in order to purchase land at Arjunahalli village for the benefit of his sisters’ children. Consequently, the testatrix possessed full liberty to disposition the properties that were scheduled and that were her own. Although those properties were recorded in the name of her son and rent notes were executed in his favour, the will asserts that such circumstances do not in any way affect her title to those properties. These statements constitute the broad features and dispositions contained in the will that is the subject of this litigation.

The Court now turns to a brief outline of the evidence presented by the appellant concerning the validity of the will’s execution. The appellant called three individuals who were directly involved in the attestation of the will: two attesting witnesses, the scribe who prepared the document, and the appellant himself. The first attesting witness, identified as Mr Krishnamurthy Rao (prosecution witness one), was a medical officer employed by the Mysore Sugar Company at Mandya. He was acquainted with Junior Kulbagal, a Cane Superintendent in the same company, who summoned him to serve as a witness. Upon arriving at the testatrix’s residence, Mr Rao observed that Lakshmamma lay in her bed suffering from a left‑side paralysis attack. He reported that despite her condition her mind appeared clear, and that he affixed his attestation after obtaining her explicit approval of the document. During cross‑examination, Mr Rao was asked to confirm whether he had treated Lakshmamma; he admitted that he had attended to her for roughly one week but could not recall seeing her name entered in the hospital register. He nevertheless explained that patients who received treatment at home and later obtained medicine from the hospital would ordinarily be entered in that register. The witness further acknowledged that the will had been prepared before his arrival and that he had not witnessed its drafting. When questioned about the particulars of his signature on the will, his recollection was vague; initially he claimed to have signed only once, but upon further probing he conceded that he might have signed twice—once in his capacity as attesting witness and again when the Sub‑Registrar registered the document in his presence. Some of his answers suggested that he could not remember being present at the moment the Sub‑Registrar arrived to register the will, and he was uncertain whether the entire document had been read aloud to him or only selected portions.

In the course of the trial, the first attesting witness, referred to as P. W. 1, first told the Court that he had placed only one signature on the document, but he later admitted that he had actually signed the instrument on two separate occasions. The first signature had been made when he attested the will, and the second signature had been made when the Sub‑Registrar had come and registered the will in his presence. Some of the answers given by this witness suggested that he could not recall being present at the moment when the Sub‑Registrar arrived and performed the registration. He further stated that the will had been read aloud in his presence, yet he could not say with certainty whether the entire document or only a portion of it had been read to him.

The second attesting witness was Narasimha Iyengar, identified as P. W. 2, who was employed by the Mandya Sugar Company Distillery. He claimed that the will had been written while he was present and that Lakshmamma had also affixed her signature in his presence. However, during cross‑examination it emerged that his assertion of being present at the time of writing might not be correct. He admitted that he did not know whether any draft of the will had been prepared beforehand and that he had not seen any such draft. According to his testimony, after the will had been written, the appellant read the document to Lakshmamma, whereas the appellant himself stated that it was the scribe who performed the reading. He added that after the attestation he and P. W. 1 had left the premises, although other evidence showed that P. W. 1 was still present when the registration took place. Moreover, this witness was unaware of whether Lakshmamma had ever suffered an attack of paralysis.

The testimony of the scribe, identified as P. W. 3, together with that of the appellant, identified as P. W. 7, directly contradicted Mr. Iyengar’s claim that he had been present at the time the will was drafted. Both the scribe and the appellant gave unequivocal evidence that Mr. Iyengar was not in the room when the will was being written. The scribe, Chokkanna, was a relative of Kulbagal; their mothers were sisters. He explained that he had prepared the will according to the appellant’s dictation, with Lakshmamma present and willing to agree to whatever the appellant instructed. The appellant possessed a draft of the will, and, according to the scribe, only the appellant, Lakshmamma and the scribe himself were present during the actual drafting. The attesting witnesses were called in only after the writing was completed. After the drafting, the scribe read the will to Lakshmamma, who then consented to the contents and signed the document. It was noted, however, that the scribe’s description of the writing process differed from the appellant’s version. The appellant asserted that the will had been composed in one room while Lakshmamma lay in an adjoining room, and that the scribe entered the adjoining room only after the drafting was finished to read the will to her. Consequently, the scribe’s statement that the will was written in Lakshmamma’s presence was not supported by the appellant’s account.

The appellant’s version of events was further corroborated by the testimony of Junior Kulbagal, identified as P. W. 4. He testified that he did not know of Lakshmamma’s intention to execute a will until the plaintiff asked him to procure attesting witnesses. He then brought P. W. 1 and P. W. 2 for that purpose. He admitted that Lakshmamma was ill and unable to rise from her bed. He heard about her intention to execute a will at around nine o’clock in the morning, but he was not present when the will was written. He was, however, present when the scribe read the will to her. His father, Kulbagal Garudachar, and his wife, Jaya, were also in the house at that time. He also stated that the appellant brought the Sub‑Registrar to the house at approximately five-thirty in the evening, and that the Sub‑Registrar proceeded to register the will.

Junior Kulbagal, identified in the record as P.W. 4, confirmed that his testimony was consistent with the statements made by the appellant. He did not appear to have any knowledge of the testatrix’s intention to execute a will. According to his account, he first learned that a will was to be prepared only after the plaintiff requested him to procure some attesting witnesses. Following that request, he proceeded to bring P.W. 1 and P.W. 2 to act as witnesses for the attestation.

The witness also admitted that Lakshmamma was suffering from illness at the time and was unable to rise from her bed. He reported hearing about her intention to execute the will at approximately nine o’clock in the morning. He clarified that he was not present at the moment the will was actually written, but he was present when the scribe subsequently read the document aloud to Lakshmamma. In addition to himself, his father, Kalbagal Garudachar, and his wife, Jaya, were also in the room during that reading.

According to the witness, the appellant escorted the Sub‑Registrar to the house at about five‑thirty p.m., and the Sub‑Registrar then registered the will. However, the application filed with the Sub‑Registrar (Exhibit VI), which invited the Sub‑Registrar to come to Kalbagal’s residence for registration, indicated that it was the witness himself—not the appellant—who had summoned the Sub‑Registrar to the premises.

The final witness supporting the will was the appellant himself, identified as P.W. 7. He narrated that, a year before the execution date, he had received instructions from Lakshmamma. He stated that he prepared a draft of the will in Mysore on the day preceding the execution and that the scribe wrote the will by dictating the contents of that draft. He further explained that he had informed Lakshmamma of the draft’s contents, although he admitted that the draft itself was never read aloud to her. He then referred to the fact that the scribe read the completed will to Lakshmamma, that she gave her consent, signed the document, and thereafter the two attesting witnesses signed as well. He also mentioned that the registration of the document took place at approximately five‑thirty p.m. on the same day.

On the morning of the day the will was executed, the witness recounted that Lakshmamma told him she intended to execute a power of attorney, even though he had not asked her to do so. Consequently, a power of attorney was prepared, duly executed, and subsequently registered.

The appellant relied on the foregoing evidence to substantiate his claim. For the sake of convenience, it is useful to summarize the reasons articulated by the lower tribunals for their respective findings. The trial judge placed the burden of proving the existence of the will upon the appellant, yet observed that the proof required to establish a will is not an absolute or conclusive proof. Rather, the judge explained that the evidence must be sufficient to satisfy a prudent person.

The trial judge then examined the testimony of the two attesting witnesses together with that of the scribe. He expressed the view that there could be no doubt that P.W. 3, the scribe, had written the document at the time it was said to have been written. He further concluded that the scribe’s evidence fully corroborated the statements of P.W. 1 and P.W. 2. The judge also noted that P.W. 4, who supported the appellant’s case, was the husband of Lakshmamma’s granddaughter. Finally, after considering the appellant’s own testimony, the judge held that the document, identified as Exhibit A, had to be treated as a will executed by Lakshmamma and that the signatures on Exhibits A‑1 to A‑5 were her own. The argument raised by the first respondent—that Lakshmamma could not have understood the contents of Exhibit A—was rejected. The judge observed that once it is proved that the signatures on Exhibits A‑1 to A‑5 belong to Lakshmamma and that she executed Exhibit A, it must be presumed that the testatrix possessed knowledge of the will’s contents.

The trial judge noted that Exhibit A had been prepared at the moment when it was claimed to have been written, and he expressed the view that the testimony of the scribe fully corroborated the statements of the first and second attesting witnesses. He further pointed out that the fourth attesting witness, who supported the appellant, was in fact the husband of Lakshmamma’s granddaughter. After considering the appellant’s own testimony, the judge concluded that it must be taken that Exhibit A represented a will executed by Lakshmamma and that the signatures appearing on Exhibit A and on Exhibits A‑1 through A‑5 were those of Lakshmamma herself. The judge rejected the respondent’s argument that Lakshmamma could not have understood the contents of Exhibit A, observing that once it was proved that Exhibits A‑1 to A‑5 bore Lakshmamma’s signatures and that she had executed Exhibit A, a presumption arose that the testatrix was aware of the will’s contents. Consequently, the trial judge recorded his finding that, in view of the evidence and the aforementioned presumption, he had no hesitation in holding that Lakshmamma had executed Exhibit A with full knowledge of its nature and of the recitals contained therein. In contrast, the High Court adopted an opposite stance. The appellate court held that the evidence produced by the appellant to demonstrate the execution of the will was unsatisfactory. It examined that evidence in detail, criticised the inconsistencies that appeared, evaluated the probabilities, and concluded that, on the whole, the material did not justify a finding that the will had been properly executed by the testatrix. The High Court also deemed the appellant’s claim that Lakshmamma had given him instructions regarding the will’s execution to be highly improbable, describing the entire body of the appellant’s evidence as unsatisfactory. Regarding the burden of proof, the High Court observed that because the appellant’s sons had obtained a substantial benefit under the will and because the appellant had played a leading role in its execution, a heavy onus rested on him to dispel any suspicions surrounding the document’s creation and to establish that Lakshmamma had fully understood its contents, had approved them, and had signed the will while in a sound and disposing state of mind. Moreover, the appellate court found the dispositions made by the will to be unnatural and improbable, particularly noting that, since the appellant had entered the Annaji family by adoption, it was very unlikely that his sons would receive such a large benefit under the will. The High Court’s judgment thus indicated an inclination to hold that the testatrix may not have been in a sound and disposing state of mind at the material time, leading the court to conclude that the appellant had failed to prove the due and valid execution of the will.

The High Court had concluded that the testatrix might not have been of sound and disposing mind at the material time, and on that basis it held that the appellant had failed to prove a proper and valid execution of the will. The Court then turned to the general legal position governing the proof of wills, noting that the matter frequently arose before the courts and that a substantial body of case law addressed it. It observed that any party who produces a will or asserts a claim under a will is, in effect, seeking to prove the existence and authenticity of a document, and that the applicable statutory rules must therefore be examined. The Court identified Sections 67 and 68 of the Evidence Act as the primary provisions dealing with the proof of documents. Under Section 67, when a document is alleged to bear a person’s signature, the signature must be proved to be in that person’s handwriting; the Court explained that the means for establishing handwriting under Sections 45 and 47 include expert opinion and testimony of individuals familiar with the person’s hand. Section 68, the Court said, required that a document which must be attested by law could not be admitted as evidence unless at least one attesting witness was called to prove its execution. These provisions, the Court held, set out the nature and the extent of proof that the party relying on a document must satisfy. In addition, the Court referred to Sections 59 and 63 of the Indian Succession Act. Section 59 provided that any person of sound mind, who was not a minor, could dispose of his property by will, and the accompanying illustrations clarified the meaning of “a person of sound mind.” Section 63 required that the testator sign the will, or that it be signed by another person in his presence and by his direction, and that the signature or mark must clearly indicate an intention to give effect to the writing as a will; the section also stipulated attestation by two or more witnesses as prescribed. The Court concluded that the question of whether the will presented by the proponent was proved to be the testator’s last will had to be decided in light of these statutory requirements.

The Court then enumerated the specific inquiries that must be resolved to determine compliance with the statutory provisions. It asked whether the testator had actually signed the will, whether he understood the nature and effect of the dispositions contained therein, and whether he affixed his signature with full knowledge of the contents. The Court stressed that the resolution of these questions ultimately shaped the nature of the finding on the proof of the will. It noted that the existence of a signature alone was insufficient unless the signature could be linked to a testator who was competent and aware at the time of execution. Moreover, the Court underscored that the testator’s mental capacity at the material time was a critical factor, as the statutes required a person of sound mind to execute a valid will. Accordingly, the Court indicated that the burden of proving these elements rested on the party relying on the document, and that the assessment of the evidence must satisfy the standards prescribed by the Evidence Act and the Indian Succession Act. By applying these principles, the Court set out the framework for evaluating the authenticity and validity of a will in subsequent proceedings.

In considering the proof of a will, the Court observed that, at first glance, a will must be proved in the same manner as any other document, subject only to the special requirements of attestation laid down in section 63 of the Indian Succession Act. As with other documents, the Court emphasized that it would be unreasonable to demand mathematical certainty in establishing the authenticity of a will. Instead, the proof must satisfy the prudent mind, applying the ordinary standard of satisfaction that is used in the proof of documents. The Court further noted a distinctive characteristic of wills: a will operates only after the death of the testator, and when it is presented before the Court, the testator is no longer alive to confirm its authenticity. This circumstance automatically introduces a solemn element into the decision‑making process regarding whether the document produced is indeed the final testament of the deceased. Nevertheless, the Court affirmed that the inquiry into the proof of a will commences with the same line of investigation as that employed for other documents. The person propounding the will must therefore produce satisfactory evidence that the testator signed the instrument, that the testator was of sound and disposing mind at the relevant time, that he understood the nature and effect of the dispositions contained therein, and that his signature was affixed of his own free will.

The Court explained that, where the evidence presented in support of the will is disinterested, clear and sufficient to establish the testator’s sound mind and lawful signature as required by law, the Court is justified in granting a finding in favour of the propounder. In such ordinary circumstances, the burden placed on the propounder is considered discharged by proving the essential facts identified above. However, the Court warned that there are situations in which the execution of a will may be surrounded by suspicious circumstances. Such circumstances may include a signature that appears shaky or doubtful, evidence that fails to remove doubts concerning the testator’s mental capacity, or disposals that seem unnatural, improbable, or unfair in light of the surrounding facts. The Court also indicated that a will may reveal signs that the dispositions were not the product of the testator’s free will or sound mind. In these cases, the Court expects that every legitimate suspicion be completely dispelled before the document can be accepted as the testator’s last will. The presence of these suspicious factors naturally makes the initial burden on the propounder heavier, and unless the propounder can satisfactorily eliminate the doubts, the Court would be reluctant to treat the document as the deceased’s final testament.

In the matter before the Court, it was emphasized that the initial burden of proving the validity of a will rested heavily on the party offering the document. The Court made clear that, unless this burden was discharged to the satisfaction of the Tribunal, the Court would be reluctant to accept the instrument as the testator’s last will. The Court noted that when a caveat was filed alleging undue influence, fraud, or coercion in respect of the execution of the will, the party raising such objections – the caveator – was required to prove those allegations. However, the Court also observed that even in the absence of a formal caveat, circumstances might arise that cast doubt on whether the testator had exercised his free will in executing the will. In such situations, the Court held that the duty to dispel any legitimate doubts formed part of the original onus on the proponent of the will, and that the proponent must present evidence sufficient to remove those doubts.

Beyond the suspicious circumstances previously discussed, the Court identified another type of infirmity that could affect a will. The Court explained that when the proponent of the will took a prominent role in its preparation and also stood to receive a substantial benefit from its provisions, that circumstance was ordinarily regarded as suspicious. Accordingly, the proponent was required to eliminate the suspicion by producing clear and satisfactory evidence that the execution of the will had been proper and free from undue influence. The Court referred to the practice of English courts, which often invoked the “test of the satisfaction of judicial conscience” in cases presenting such suspicious circumstances. Although the term originated from observations of the ecclesiastical courts in England, the Court dismissed any objection to the use of the word “conscience” as a purely technical or pedantic matter. The test, according to the Court, simply underscored that deciding whether a document placed before the Tribunal was indeed the testator’s last will demanded a solemn and thorough examination, and that the Court must be fully convinced that the will had been validly executed by a deceased testator.

The Court further stated that, for material questions of fact arising in probate applications or will‑related actions, no rigid or inflexible rule could be prescribed for the appraisal of evidence. Nonetheless, the Court articulated a general principle: the proponent of a will bore the responsibility to prove that the will had been duly and validly executed. When suspicious circumstances surrounded the execution, the proponent was obliged to remove those suspicions from the Court’s mind by presenting cogent and satisfactory evidence. The Court added that it was hardly necessary to remark that the application of these two broad principles would always depend on the specific facts and circumstances of each case, as well as on the nature and quality of the evidence adduced by the parties. Finally, the Court cited the observation of Lord Du Parcq in Harmes v. Hinkson, remarking that where a will was charged with suspicion, the judicial mind must maintain a reasonable scepticism without falling into an impenetrable disbelief, thereby ensuring that the search for truth remained open, vigilant, cautious, and circumspect.

The Court explained that the legal principles governing the examination of a will demand that a judge adopt a stance of reasonable scepticism, not an unrelenting refusal to accept the evidence. Even when the circumstances surrounding the execution of a testamentary instrument are grave and raise serious doubts, the judge is not required to maintain an impenetrable incredulity or to shut the mind completely against the possibility of truth. While it may sound like a trite observation, the Court stressed that the judiciary must remain vigilant, cautious and circumspect, yet always keep the mind open to discovering the truth, even in the most suspicious cases. In applying these general considerations, the Court turned to the question of whether the appellant was justified in asserting that the High Court’s finding against him on the issue of the will’s valid execution was warranted. The Court noted that the appellant's claim that the deceased, Lakshmamma, had affixed her signature at five distinct places on the document had been established beyond doubt, which certainly weighed in his favour. Equally, it was recorded that the first respondent had failed to demonstrate that Lakshmamma was unconscious at the time the will was purportedly executed. The facts disclosed that Lakshmamma was an elderly woman, aged sixty‑four, who had been suffering from ill health for some time before the execution of the will. She was unable to rise from the bed, could only sit up with difficulty, and was so weak that she required assistance to pass stools while remaining in bed. Nonetheless, the appellant was permitted to argue that, on the basis of the evidence, Lakshmamma’s sound and disposing state of mind at the relevant time was proved. The appellant’s counsel, Mr Iyengar, emphatically urged that, since these facts were established, the court should presume the will to have been validly executed. To support this position, he cited authoritative textbook passages. Jarman, in his treatise “Wills”, observed that “the general rule is that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.” Jarman further stated that, where a will appears rational on its face and seems to have been duly executed, it is presumed valid unless evidence to the contrary is produced. In a similar vein, Williams, in “Executors and Administrators”, remarked that, “generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of the will having been read over to the testator or of instructions having been given is not necessary.”

The opposing counsel, Mr Viswanatha Sastri, appearing for the first respondent, contended that the textbook statements relied upon by the appellant pertained only to wills that were free from any suspicion and could not be invoked when the execution of a will was enveloped in doubtful circumstances. He argued that the citations advanced by the appellant ignored the crucial difference between a will executed in an ordinary, unblemished context and one whose execution was clouded by suspicious facts. Consequently, the Court needed to determine whether the presumption of validity could be sustained in light of the specific facts concerning Lakshmamma’s age, physical condition, and the alleged circumstances of execution. The Court also considered that the statutory and common‑law principles require the party offering the will to remove any suspicion from the court’s mind by presenting cogent and satisfactory evidence. While the appellant had succeeded in proving the presence of Lakshmamma’s signatures and her capacity to sign, the Court examined whether the totality of the evidence—the lack of proof of unconsciousness, the medical condition of the testatrix, and the circumstances under which the signatures were obtained—satisfied the stringent requirement of removing suspicion. The Court underscored that the presence of a signature alone does not automatically eliminate doubts, especially when the testator was weak, elderly, and possibly vulnerable. Accordingly, the Court was tasked with balancing the presumption of validity against the need for a thorough, vigilant inquiry to ensure that the will truly reflected the testator’s free and informed intention, without allowing the mere existence of signatures to override substantive concerns about possible coercion or incapacity.

In considering whether the execution of the will in the instant case was surrounded by any suspicious circumstances, the Court observed that the legal texts cited also contain a further rule. Although a Roman law maxim, referred to in Williams as “Qui se scripsit haeredem,” which prevents a person who drafts his own will from benefiting under it, does not apply in English law, the Court noted that when the individual who prepares or conducts the execution of a testamentary instrument is himself a beneficiary of its dispositions, such a situation normally raises suspicion. The Court explained that this suspicion obliges the court to be vigilant and zealous in scrutinising the evidence supporting the instrument, and that the court should not pronounce in favour of the instrument unless the suspicion is removed. The Court cited Jarman on Wills (Vol. 1, 8th Ed., p. 50) and Williams on Executors and Administrators (Vol. 1, 13th Ed., p. 92) for this principle, adding that once the court is judicially satisfied that the document truly reflects the deceased’s intention, the presumption of validity may stand.

The Court then set out the first issue for determination: whether the will at hand appears, on the whole, to be an improbable, unnatural, and unfair instrument, as the High Court had held. The Court observed that the preamble to the will contains numerous argumentative recitals. It was not unjust, the Court said, to characterize the preamble as an attempt to anticipate the main objections that could be raised to Lakshmamma’s competence to execute a will concerning the properties described therein. In detail, the preamble advances several contentions. First, it asserts that the properties which the testatrix and her husband had received under a gift deed (Exhibit D) devolved upon the testatrix by survivorship after her husband’s death; this claim had not been accepted even by the trial court. Second, the preamble seeks to establish that subsequent purchases made by her husband were, in law, joint acquisitions of both husband and wife, a point on which the two lower courts had differed. Third, the preamble advances a theory that the testatrix’s son had lost his right, title, and interest in the properties that had devolved upon him after his father’s death because he had alienated more than his share of those properties during his lifetime. Additionally, the preamble suggests that, during the son’s illness and to assist him in building a house in Mysore, the testatrix had advanced him money from her separate funds; these pleas also had not been accepted by either lower court.

The Court concluded that the elaborate and carefully crafted recitals inserted in the preamble could not plausibly have arisen from instructions given by the testatrix to the appellant for drafting her will. In the Court’s view, these recitals appeared artificial and unnatural, and some of them were, at any rate, untrue.

The Court observed that the draftsman of the will appeared to have acted over‑wise, and that this defect was a serious infirmity in the appellant’s case. The instrument was therefore examined in light of the authority cited as Williams on “Executors and Administrators”, Volume 1, thirteenth edition, page 93. In particular the Court focused on a statement in the will that the testatrix had advanced three thousand rupees to her son so that he could purchase a house in Mysore. Although that particular advance was not, by itself, a matter of great importance, the Court noted that its inclusion in the will was intended to support the contention that all the properties mentioned in the will were the separate property of the testatrix. Consequently, the Court considered it necessary to hear the appellant’s explanation of this recital. In cross‑examination the appellant contended that Mr B G Ramakrishna Iyengar had sent the said amount to the husband of Respondent 1 in about the year 1942. The money, according to the appellant, had been transferred by cheque drawn on Mysore Bank. The appellant further explained that the husband of Respondent 1 had deposited the three thousand rupees with the father‑in‑law of B G Ramakrishna Iyengar after selling the Goudanahalli lands with a view to purchasing lands at Mysore. On that basis, the appellant argued that the claim in the will that the testatrix had given the amount to her son out of her separate funds was inaccurate. The Court held that the manner in which several such recitals were fashioned in the will created a suspicious circumstance that required a satisfactory explanation from the appellant.

The Court next turned to the matter of the grandchildren of the testatrix, who had been excluded from any substantial legacies under the will. While the will did provide a nominal bequest of five hundred rupees to each grandchild, the Court observed that such a token amount could hardly be described as fair or just. Counsel for the appellant, Mr Lyengar, submitted that during his lifetime Narayana Lyengar had given lands to his sister’s daughters, had spent considerable sums on their marriages and had presented each with valuable ornaments. He referred the Court to documents exhibited as Exhibit IG and claimed that the lands given to the sister’s daughters were valued at between one thousand five hundred and two thousand rupees each. The Court found that the value of those lands was not clearly established and that the circumstances of the gifts were not fully proved. Accordingly, the Court was not persuaded that, even assuming those gifts had been made, the testatrix would not have contemplated more substantial bequests to her grandchildren. The Court added that it was not suggested that the relationship between the testatrix and her grandchildren was anything but cordial and affectionate; therefore, under ordinary circumstances it would have been reasonable to expect that the testatrix would have shown greater generosity toward them. The Court indicated that there remained another point requiring consideration in the final analysis.

The Court observed that the appellant’s sons had received substantial bequests under the will and questioned whether such gifts were probable and natural. It noted that the appellant had entered the family of Annaji by adoption long after the testatrix’s marriage, and that the record did not demonstrate any affectionate relationship between the testatrix and the appellant that would justify preferential gifts to his sons over her own grandchildren. The appellant admitted that, at the relevant time, he was in strained financial circumstances and was indebted by nearly Rs 30,000, and the Court found no evidence that he sought or obtained any assistance from his adoptive sister when faced with such difficulties. Consequently, the bequests to the appellant’s sons were regarded as a suspicious circumstance that required a clear explanation from the appellant. The Court could not readily reject the argument presented by respondent I that the gifts were made in the names of the appellant’s sons because, had they been made directly to the appellant, the properties might have been attached and sold at the instance of his numerous creditors. While the Court did not attempt to precisely assess the value of the properties given to the appellant’s sons, it emphasized that the bequests were by no means insignificant. Accordingly, the Court was unable to see how the appellant could successfully challenge the High Court’s finding that certain broad features of the will appeared improbable and unfair. The Court stated that, if this were so, the appellant would have to dispel the suspicions arising from these features before persuading the court to accept the instrument as the testatrix’s valid last will and testament. In this regard, the Court considered it necessary to remember that the appellant, whose sons had received the said bequests, had admittedly taken a very prominent role in bringing about the execution of the will. He had prepared the draft, and the scribe had written the will at his dictation. On the crucial question of when and how the testatrix gave instructions and whether those instructions were faithfully carried out in the draft, the only evidence produced in the case was that of the appellant; no other witness offered contrary testimony. Thus, the Court held that the important, if not decisive, part played by the appellant in the execution of the will could not be disputed. Counsel for the appellant vigorously argued that, in deciding whether the suspicions attending the execution of the will had been removed, it was necessary to note that all relevant evidence was one‑sided and that respondent I had offered no rebuttal evidence. He maintained that the evidence presented by the appellant was satisfactory.

In this appeal the Court observed that the trial court’s well‑founded conclusion did not require reversal by the High Court. To support that view, counsel for the appellant cited several judicial decisions and urged that the evidence be examined in the light of those authorities. He argued that the cited decisions would provide considerable assistance and guidance for appreciating the evidence presented in the present matter, and therefore the Court briefly referred to some of the decisions that had been mentioned.

The Court noted the proposition advanced in Fulton v. Andrew (1) that “those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction.” The Court further observed that there is no immutable rule of law, especially where fraud is alleged, that once it has been proved that a competent testator had a will read over to him and then executed it, “all further enquiry is shut out.” In the case under discussion the Lord Chancellor, Lord Cairns, endorsed the well‑known observations of Baron Parke in Barry v. Butlin (1). Baron Parke articulated two rules of law: first, that “the onus probandi lies in every case upon the party propounding a will; and that party must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator”; second, that “if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.” The Court observed that these two rules have become classic statements on the subject and are cited in all textbooks on wills.

The Court then described the procedural history of the will in question. The will was ordered to be tried at the Assizes by the Court of Probate and the trial examined six distinct issues. The first four issues concerned the soundness and dispositional state of the testator’s mind; the fifth issue addressed the testator’s knowledge of and approval of the contents of the will; and the sixth issue concerned whether the testator knew and approved the residuary clause, by which the propounders of the will were made the residuary legatees and were appointed executors. Evidence was led at trial, and the judge directed the jurors to give their opinion on each issue. The jurors returned verdicts in favour of the propounders on the first five issues, while finding in favour of the opponents on the sixth issue.

In the matter concerning the sixth issue of the trial, the record shows that no permission was obtained to overturn the jury’s verdict and to enter judgment in favour of the propounders despite the adverse finding on that particular issue. Nevertheless, when the case was subsequently presented before the Court of Probate, a special rule was secured that either annulled the verdict in its entirety and ordered a new trial, or, alternatively, set aside the verdict on the sixth issue on the ground of misdirection, as noted in the report (1) [1838] 2 Moo. P.C. 480,482. It was while examining the substantive merits of the finding on the sixth issue that the House of Lords was called upon to consider the correct legal position. The ultimate decision of the House of Lords was that the rule permitting a new trial should be discharged, that the Court of Probate’s order confirming the whole will should be reversed, and that the case should be remitted back to the Court of Probate to take appropriate action with respect to the qualified probate of the will. The same legal principle was later reiterated by the Privy Council in Vellasawmy Servai v. Sivaraman Servai (1), where it was held that when the chief beneficiary of a will is also the person who directed its preparation and procurement, probate must not be granted unless the evidence eliminates any suspicion and clearly demonstrates that the testator approved the instrument. In the subsequent authority Sarat Kumari Bibi v. Sakhi Chand (2), the Privy Council clarified that the requirement for the propounder to remove doubts from the court’s mind is not limited to situations where the propounder participates in the execution of the will and receives a benefit; rather, any other suspicious circumstances surrounding the execution of the will also impose a duty on the propounder to dispel all clouds and satisfy the conscience of the court that the document presented is indeed the testator’s final will. This viewpoint received support from the observations of Lindley and Davey, L.J.J., in Tyrrell v. Painton (3), where they noted that the rule articulated in Barry v. Butlin (4), Fulton v. Andrew (5) and Brown v. Fisher (6) was, in Lindley’s opinion, not confined to the narrow scenario in which the will is prepared by or on the instructions of a large beneficiary, but extends to any case where circumstances give rise to judicial suspicion. In Rash Mohini Dasi v. Umesh Chunder Biswas (1) (1929) L.R. 57 I.A. 96, the court observed that although the will in question was relatively short and straightforward, its entire preparation was carried out by Khetter, who acted as the manager and trusted adviser of the alleged testator, and that there was no evidence of any prior or independent intention on the part of the testator to execute a will apart from the involvement of this adviser.

In the first matter, the Court observed that the evidence showed the testator had not demonstrated sufficient understanding of the business in which his adviser was engaged, and therefore the grant of probate could not be justified. The application for probate, filed by the widow of Mohim Chunder Biswas, faced opposition on the ground that the testator was not in a sound and disposing state of mind at the material time and consequently could not have comprehended the nature and effect of the will’s contents. Although the District Judge had admitted the will to probate, the High Court reversed that decision, holding that the statutory requirements were not satisfied. The Privy Council, in confirming the High Court’s view, reiterated the observations previously cited by this judgment. By contrast, the case of Shama Charn Kundu v. Khettromoni Dasi (1) involved a will whose execution was found to be free of any suspicious circumstances. In that dispute, Shama Charn claimed to be the adopted son of the testator and, together with three others, was appointed as executor of the will. The testator left no natural son, only two daughters and his widow, and the will granted a substantial benefit to the adopted son. The trial judge granted probate of the will, except for its final paragraph; however, on appeal the High Court dismissed the probate application because the suspicions surrounding the execution had not been satisfactorily dispelled by Shama Charn. When the matter reached the Privy Council, the Lords held that, because the adoption of Shama Charn was proven, his participation in the execution of the will and the benefit he received could not be deemed a suspicious circumstance that would invoke the rule articulated by Lindley, L. J., in Tyrrell v. Painton (2).

The third authority, Bai Gungabai v. Bhugwandas Valji (3), required the Privy Council to consider a will that had initially been admitted to probate by the first court but was altered on appeal to exclude certain passages. Those omitted passages related to a deed‑poll executed on the same day by the testator and to the remuneration of the solicitor who had prepared the will and was appointed as executor and trustee. The Privy Council stated that the onus lay upon the solicitor to convince the court that the excluded passages accurately reflected the deceased’s true intentions, and that the court must examine the supporting evidence with diligence and zeal. Nevertheless, after reviewing the entire body of evidence and the surrounding circumstances—without any prescribed rule of law dictating a specific evidentiary requirement—the Council concluded that the solicitor had discharged the burden of proof. In addressing whether the testator was aware that the passages excluded by the appellate court formed part of the instrument, the Privy Council examined the relevant evidence and probabilities, ultimately differing from the appellate court’s conclusion of a complete failure of proof regarding the deed‑poll’s proper representation of the testator’s intentions.

In the matter under review, the appeal court had held that the portions of the probate which referred to a deed‑poll did not form a part of the instrument, and the Privy Council therefore examined all the evidence relating to that point, together with the probabilities that could be drawn from it. After a thorough consideration, the Privy Council’s Lordships reached a conclusion that differed from the view expressed by the appellate court. The appellate court had claimed that there was a total failure of proof showing that the deed‑poll accurately expressed the testator’s intentions, or that the testator had understood or approved its contents. Accordingly, the Privy Council found that no adequate basis existed for excluding from probate the clauses in the will that referred to that deed. Nevertheless, the Lordships observed that it would unquestionably have been more prudent and business‑like to have engaged independent witnesses who could be trusted to verify that the testator fully understood his actions, and to secure independent evidence that clause twenty‑six, in particular, had been brought to the testator’s attention. Even with this observation, the Privy Council expressly added that its conclusion should not be taken as casting any doubt on the principles laid down in Fulton v Andrew and on the other similar authorities cited in the arguments. In the case of Perera v Perera, the Council noted the established rule that when a testator possesses a sound mind at the time he gives instructions for a will, he is to be presumed to be of sound mind at the moment of signing even if, at that instant, he is unable to follow the provisions of the instrument; thus the testator is deemed of sound mind when the will is executed.

The will that was the subject of the Perera decision was executed by the testator signing a cross in the presence of five witnesses who were all present simultaneously and who also subscribed to the will in the testator’s presence. A Notary Public was also present at the execution, although he did not attest the document. No objection to the Notary’s lack of attestation was raised in the trial court, but the appellate court later raised that objection and held the will to be invalid on the ground that the Notary, despite being present, had not attested the instrument. The matter was consequently taken to the Supreme Court in its collective capacity for review, as a step before an appeal to Her Majesty’s Privy Council. The Supreme Court overturned the appellate judgment and proceeded to decide the case on its merits. By a majority decision, the Supreme Court held that the testator was of sound and disposing state of mind and restored the order made by the primary judge. An appeal was filed against this decision. In the appealed case, the evidence concerning the instructions given by the testator was found to be very clear, and there was no reason whatsoever to doubt the statement of Gooneratne that he had drawn the will faithfully according to the detailed instructions provided. The will prepared from those instructions appeared to constitute a fair and just disposition of the testator’s property. There

There was no concealment in the preparation of the will. The testator gave his instructions on 1 June, and on the evening of 4 June the will was presented to him for execution. On the basis of these facts the Court applied the observation of Sir James Hannen in Parker v. Felgate (1) [1883] 8 P.D. 171, which stated that when a person directs a solicitor to draw up a will and the solicitor does so in accordance with those directions, the only requirement for the will to be valid after the testator signs it is that the testator must be able to think, “If I gave my solicitor instructions to prepare a will making certain dispositions of my 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 Court again emphasized that the evidence concerning the testator’s instructions was clear and definite, and that the will, which was just and fair, was executed faithfully according to those instructions. Consequently, whether the will should be admitted to probate depended on the opinion the Court formed after considering the evidence presented in support of the will. The Court noted that it would be difficult to extract a general principle from this decision and to apply it to other cases without reference to the specific facts of those cases.

The Court then referred to the decision of the Privy Council in Harmes v. Hinkson (1) (1946) 50 C.W.N. 895. In that case the testator, George Harmes, died in Regina on 4 April 1941. Two days later Mr Hinkson brought a document, purported to be Harmes’s will dated 3 April 1941, to the manager of the Canada Permanent Trust Company in Regina, naming the Trust Company as executor and providing Mr Hinkson, a barrister and solicitor, with a devise and bequest of the residue of more than £50,000. Hinkson had drawn the will without any witness present until the body of the document was complete, after which two nurses were called in to witness its execution. The learned judge of the Surrogate Court, after a lengthy trial, affirmed the will and decreed probate in solemn form. On appeal, a majority reversed the trial judge’s order. A further appeal to the Supreme Court of Canada, heard by five judges, resulted in a majority (Hudson, J., alone dissenting) allowing the appeal and restoring the Surrogate Court’s decree. The appellant then obtained special leave to appeal to His Majesty‑in‑Council, raising the contention that, because the document had been suspect from the outset, probate should not have been granted to the respondent Hinkson.

In the appeal the respondent, Mr. Hinkson, argued that because the document had been suspected of irregularity from the beginning, the probate should not have been granted to him. The Privy Council rejected that argument and dismissed the appeal. While addressing the appellant’s allegation that the execution of the will was suspect, Lord Du Parcq reiterated the observations previously quoted by the Court. The Court observed that, on their face, the material on which the appellant relied appeared to be strong; however, the issue for determination was whether the trial judge’s findings of fact were erroneous, and if such error was so manifest that an appellate court ought to set aside the decision. The Privy Council then referred, with approval, to the well‑established principle that an appellate court must give great respect to the judgment of a trial judge who has observed the witnesses personally and formed an opinion on their credibility, as articulated in Powell v. Streatham Manor Nursing Home (1). The Court briefly examined the evidence presented in the case and noted that, from the printed record alone, it was impossible for the appellate judges to decide between the competing assessments of Mr. Hinkson’s character that different readers might accept. Consequently, the Privy Council agreed with the Supreme Court that the trial court’s factual findings should remain undisturbed. This decision underscored that there was no justification for the appellate court to interfere with a factual finding made by the trial judge, especially when that finding was based on the judge’s assessment of the evidence produced by several witnesses before him. In this context, the Court emphasized that the appellant’s claim that Mr. Hinkson had exercised undue influence over the testator was rejected, because acceptance of the trial judge’s factual findings left the Privy Council no alternative but to dismiss the allegation. The decision thus illustrates the high value the Privy Council placed on the trial court’s factual determinations in this matter (1) [1935] A.C. 243. In light of those precedents, the appellant now asks the Court to consider the evidence he has introduced in the present proceedings. It is appropriate to begin with the appellant’s description of the instructions he received from the testatrix concerning the preparation of her will. The plaint states that the testatrix fell suddenly ill at Mandya and, with the clear purpose of arranging her property, summoned the appellant. When he met her at Mandya, she is said to have explained in detail her intentions regarding the disposition of all her assets and the rights attaching to them. In other words, the pleading alleges that the testatrix, during her illness, expressly directed the appellant to prepare a draft of her will, a claim presented in a clear and specific manner.

In this case the Court observed that the plaintiff’s original claim was that, when the testatrix fell ill at Mandya, she summoned the appellant and gave him specific instructions to prepare a draft of her will. However, during his testimony the appellant altered his narrative in a material way. He now asserted that he had actually received the testatrix’s instructions a full year before the will was finally drafted. According to this later version, the testatrix had handed him a gift deed, identified as Exhibit D, and had asked him to prepare the draft at that earlier time. Consistent with this revised story, the appellant added that during the visit to Mandya, while the testatrix was still ill, she reminded him that she had asked him to make a will for quite some time and she urged him to prepare the draft without any further delay. The Court found this subsequent explanation to be an after‑thought and held that the appellant’s claim of having received prior instructions lacked credibility and could not be accepted as true.

The Court further noted that on both occasions when the testatrix allegedly conversed with the appellant and gave instructions, no other person was present, meaning that the proof of this portion of the appellant’s case rested solely on his own testimony. It appeared unlikely that a woman who had contemplated making a will for over a year would not have discussed her intentions with other close relatives, including Kalbagal, with whom she was staying at the relevant time. Moreover, the Court pointed out that the draft prepared by the appellant had not been produced because it was said to have been destroyed, and the appellant had not specifically stated that he had read the draft in full to the testatrix clause by clause before dictating its contents to the scribe. Consequently, even the appellant’s interested testimony did not establish that the testatrix had consented to the draft after a complete reading. The Court also remarked that Mandya, where the testatrix was ill, was a place where local lawyers were readily available, and ordinarily the testatrix would have consulted Kalbagal and the appellant and secured legal assistance for drafting the will. Instead, the appellant claimed to have gone to Mysore and prepared the draft without any legal help. Given the elaborate recitals contained in the will, the Court found it difficult to accept that these could have originated solely from the testatrix’s instructions. In light of these circumstances the

In this matter the Court had to examine the direct evidence concerning the execution of the will. The testimony of the first witness, identified as P W 1, proved to be inconclusive on the crucial question of how the will was executed. This witness admitted that he could not recall clearly the events of the day on which he attested the document, and he further confessed that he was unable to state definitively whether the entire contents of the will had been read aloud to the testatrix before he affixed his attesting signature. Because the case required proof that the testatrix had heard the will read in full and understood its nature and legal effect, the Court found that even accepting P W 1’s evidence would not advance the appellant’s position. The second witness, P W 2, offered a narrative that he was present at the moment the will was being written; however, that account conflicted entirely with the testimonies of witnesses numbered three, four and seven. Consequently, the Court considered the evidence of P W 2 to be of little assistance, and it turned its attention to the remaining testimonies of the scribe and of the appellant himself.

The scribe, described as P W 3 and a close relative of Kalbagal, did not support the appellant’s allegation that the testatrix had previously instructed the drafting of the will. According to the scribe, the testatrix had indicated that she would accept whatever the appellant chose to have written, a statement that directly contradicted the appellant’s claim of prior instruction. Because this testimony was inconsistent with the appellant’s version, the Court concluded that it could not be relied upon to demonstrate that the testatrix fully comprehended the introductory recitals and the consequent dispositions before signing. The appellant’s own testimony, recorded as P W 7, was deemed unreliable because it originated from an interested party and lacked convincing detail. The appellant’s counsel had argued that the evidence of Kalbagal, identified as P W 4, should be deemed disinterested and therefore trustworthy, a view also adopted by the trial court. The Court, however, found that Kalbagal could not be described as wholly disinterested, since Respondent 5, his step‑brother who resides with him and their father, obtained a substantial benefit under the will. Moreover, Kalbagal’s statements indicated that he was unaware of the will’s execution until the appellant requested his assistance in securing attesting witnesses, a scenario the Court found neither natural nor probable. Even setting aside these concerns, Kalbagal’s testimony failed to establish that the will had been read in full to the testatrix, thereby enabling her to understand its complete effect before she signed the document.

The Court observed that the entire set of evidence presented by the appellant concerned the manner in which the will was purportedly executed. After examining that evidence, the Court stated that it could not accept a claim that the High Court had erred in its finding that the testatrix had not demonstrably understood the contents of the will, nor that she had affixed her signature to the instrument with the intention that the recitals and dispositions contained therein would reflect her own wishes. In the same vein, the Court added that the learned trial judge appeared to have misdirected himself in law by holding that the very existence of the testatrix’s signature on the will created a legal presumption that the will had been properly executed by her. The trial judge had relied upon the decision of the Calcutta High Court in Surendra Nath Chatterji v. Jahnavi Charn Mukerji (1). That authority, while correctly noting that a proved signature or an acknowledgment of having signed a will gives rise to a presumption that the signer was aware of the document’s provisions, also recorded the observation of Mr. Justice B. B. Ghose that such a presumption may be rebutted by proof of suspicious circumstances, a principle that the Court described as the true legal position. The Court further explained that what constitutes “suspicious circumstances” cannot be exhaustively listed but must be determined on the facts of each case. It was therefore noted with regret that the trial judge had failed to properly evaluate the effect of any suspicious circumstances existing in the present matter, a failure that introduced a serious infirmity into his ultimate conclusion.

In addition, the Court pointed out that the appellant had obtained a power of attorney from the testatrix on the very same day as the alleged execution of the will, a fact that gave rise to the argument that the appellant was eager to assume possession and management of the properties even before the testatrix’s death. The Court also mentioned another relevant circumstance: the Sub‑Registrar who had been present at the registration of the document on that day had not been examined, despite being alive at the time of the trial. Considering all these facts, the Court was inclined to hold that the High Court was justified in overturning the trial court’s finding on the question of whether the will had been duly and validly executed. The Court cited the authority (1) (1928) I.L.R., 56 Cal. 390 in support of this view. However, before concluding the case, the Court added that the High Court was not justified in recording findings on two other issues raised in the appeal. The Court reiterated that, as the High Court itself had observed, once it was held that the appellant had not proved the will, no other issue remained for decision, yet the High Court had nonetheless expressed conclusions in favour of those other matters.

The Court examined the submissions made by respondent I regarding two matters: first, the character of the later acquisitions identified as items three, four and five; and second, whether the testatrix continued to hold any title over all of the properties that were covered by the will. Considering the relationship between the parties, the Court found it difficult to accept that mere entries in the revenue record created in the name of Sadagopalachar, or the prolonged possession by Sadagopalachar and, after his death, by Narayana Iyengar, could by themselves demonstrate a valid transfer of Lakshmamma’s title or, alternatively, its extinction by adverse possession. The Court observed that, in arriving at these conclusions, the High Court had not fully or properly taken into account all of the material evidence that was before it, and consequently the reasons offered by that Court were open to serious challenge on the merits. Moreover, counsel for the respondent did not appear inclined to support those findings. Nevertheless, the Court indicated that it would not decide these two questions on their merits, because the determination of the principal issue rendered any further consideration unnecessary. Accordingly, the Court clarified that these two issues remain undecided in the present proceedings and may have to be relitigated between the parties if and when they arise. As a result, the appeal was held to have failed and was dismissed, and no order as to costs was made by this Court.