# GORANTLA THATAIAH v. THOTAKURA VENKATA SUBBAJAH & ORS

- **Citation:** [1968] 3 S.C.R. 473
- **Court:** Supreme Court of India
- **Decided:** 1968-03-19
- **Case number:** Civil Appeal No. 43'1 of 1965
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gorantla-thataiah-v-thotakura-venkata-subbajah-ors-4431
- **Pages:** 8

## Headnote

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473
A
GORANTLA THATAIAH
v.
THOTAKURA VENKATA SUBBAJAH & ORS.
March 19, 1968
B
[1. C. SHAH, V. RAMASWAMI AND G. K. MITTER, 1J.]
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Will-Propounder taking prominent part in ~xecutlon of and receiving
benefif under-Principles regarding scrutiny of evidence of execution .and·
sound disposing state of mind of testator.
One V lost his father when he was only 10 years old and thereafter
lived al<!ng with his mother; i• the hous., of the first defendant who was
his maternal uncle.
The first defendant had considerable influence over
V as he was slow witted and below the average level of intelligence and
understanding. V died when he was 24 years old. A few days before
his death he executed a will by which he bequeathed his entire property
to the first defendant absolutely with a direction that his mother should be
maintained, and that, even if his mother lived separately from the first
defendant, she was to have only a life. interest in certain items which were
also to be taken absolutely by the first defendant after her death. At the
time of the execution of the will V was physically in a weak condition.
The first defendant took a prominent part in summonin~ the attesting
witnesses and the scribe and in procuring writing materials for the execution Of the will. Evidence was given on behalf the first defendant tliat
though· V was delirious on Ibo day previous to the execution of the will
and also subsequent to that date, V was ·in a pormal condition on the date>
of the execution of the will.
On ·the question of the validity of ihe will,
HELD : The will was not executed in a sound disposing state of mind·
and was therefore not legally valid. (480 A-BJ
In a case in which a will is prepared. under circum'Stano-..s which raise
the suspicion of the court that it does not express the mind of the .testatOr
it is for those who propound the will -to remove that suspicion. What are
suspicious circumstances mint be judged on the facts and circumstances
of each particular case. If, however, the propounder takes a prominent
part in the execution of the wjll which eonfcrs substantial benefits on him
that itself is a suspicious circumstance attending the execution of the will
and in appreciating the evidence in such a case the coun should prooeed
in a vigilant and cautious manner. (477 H; 478 A-BJ
Ba"Y v. But/in, (1838) 2 Moo. P.C. 480, 482, Fulton v. Andrew,
(187S) L.R. 7 H.L. 448, Ty"ell v. Painton, (1894) P. 151, 157, 159 and
Surat Kumari Bibi v. Sakhi Chand & Ors., 56 I.A. 62, applied.
CML APPELLATE JURISDICTION : Civil Appeal No.
43'1
of 1965.
Appeal from the judgment and decree dated August 22, J 963
of the Andhra Pradesh High Court in Appeal No. 554 of 1959.
ff
H. R. Gokhale and K. R. Chaudhuri, for the appellant.
D. Narsa Raju, S. T. Desai, A. Vedavalli and A. V. Rangan
for the respondents.
1
t
.474
$UPlll!MB OOtlaT UPOl.TS
(1968) 3 S.c.R.

## Text

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473
A
GORANTLA THATAIAH
v.
THOTAKURA VENKATA SUBBAJAH & ORS.
March 19, 1968
B
[1. C. SHAH, V. RAMASWAMI AND G. K. MITTER, 1J.]
c
D
E
F
G
Will-Propounder taking prominent part in ~xecutlon of and receiving
benefif under-Principles regarding scrutiny of evidence of execution .and·
sound disposing state of mind of testator.
One V lost his father when he was only 10 years old and thereafter
lived al<!ng with his mother; i• the hous., of the first defendant who was
his maternal uncle.
The first defendant had considerable influence over
V as he was slow witted and below the average level of intelligence and
understanding. V died when he was 24 years old. A few days before
his death he executed a will by which he bequeathed his entire property
to the first defendant absolutely with a direction that his mother should be
maintained, and that, even if his mother lived separately from the first
defendant, she was to have only a life. interest in certain items which were
also to be taken absolutely by the first defendant after her death. At the
time of the execution of the will V was physically in a weak condition.
The first defendant took a prominent part in summonin~ the attesting
witnesses and the scribe and in procuring writing materials for the execution Of the will. Evidence was given on behalf the first defendant tliat
though· V was delirious on Ibo day previous to the execution of the will
and also subsequent to that date, V was ·in a pormal condition on the date>
of the execution of the will.
On ·the question of the validity of ihe will,
HELD : The will was not executed in a sound disposing state of mind·
and was therefore not legally valid. (480 A-BJ
In a case in which a will is prepared. under circum'Stano-..s which raise
the suspicion of the court that it does not express the mind of the .testatOr
it is for those who propound the will -to remove that suspicion. What are
suspicious circumstances mint be judged on the facts and circumstances
of each particular case. If, however, the propounder takes a prominent
part in the execution of the wjll which eonfcrs substantial benefits on him
that itself is a suspicious circumstance attending the execution of the will
and in appreciating the evidence in such a case the coun should prooeed
in a vigilant and cautious manner. (477 H; 478 A-BJ
Ba"Y v. But/in, (1838) 2 Moo. P.C. 480, 482, Fulton v. Andrew,
(187S) L.R. 7 H.L. 448, Ty"ell v. Painton, (1894) P. 151, 157, 159 and
Surat Kumari Bibi v. Sakhi Chand & Ors., 56 I.A. 62, applied.
CML APPELLATE JURISDICTION : Civil Appeal No.
43'1
of 1965.
Appeal from the judgment and decree dated August 22, J 963
of the Andhra Pradesh High Court in Appeal No. 554 of 1959.
ff
H. R. Gokhale and K. R. Chaudhuri, for the appellant.
D. Narsa Raju, S. T. Desai, A. Vedavalli and A. V. Rangan
for the respondents.
1
t
.474
$UPlll!MB OOtlaT UPOl.TS
(1968) 3 S.c.R.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by certificate on be-
.half of the plaintiff from the judgment of the High Court of Andhra
.Pradesh in Appeal Suit No. 554 of 1959 dated August 22, 1963.
A
One Gorantla Tathiah, as the sole plaintiff, filed O.S. No. 2
of 1957 in the Court of the Subordinate Judge, Bapatla for posB
session of certain properties which had been left by Gorantla
Veeriah when he died issueless on June 24, 1939. Originall)I.
there were ten defendants in the suit. Defendant no. 1 is the
maternal uncle of V eeriah and Defendant no. 2 and Defendant
.no. 3 arc the sons of Defendant no. 1. Defendants nos. 4 to 8
·were the alienees froin Defendant no. l's family. Defendants nos.
7, 9 and 10 did not contest the suit. Defendant no. 8 died in the
course of the suit and his legal representatives were added as De·
fendants 11 to 14. Defendants l to 3 contested the suit on the
,ground that Defendant no. 1 became entitled to the properties of
Veeriah under the will, Ex. B-4 dated June 17, 1939 which
Veeriah executed in his favour. It was contended in the alternative
1hat at the time when the reversion opened on the death of
Veeriah's mother, Rattamma on October l, 1956, Defendant no.
1 was the nearest heir and not the plaintiff, under the Hi:ld'.: Succession Act (XXX of 1956) which had come into force Oil October 17, 1956. The Additional Subordinate Judge, Bapatla held
that the will was tru~ and genuine but it was not legally valid as
it was executed by V eeriah at a time when he had no testamentary
capacity. It was also held that the Hindu Succession Act did not
apply to the facts of the case. The Additional Subordinate Judge
accordingly granted a decree for possession of properties except
item no. 4 in favour of the plaintiff as against Defendants nos. t
to 3, 6, 7 and 11 to 14. Defendants 1 to 3, 7, 11 and 13 took
the matter in appeal to the High Court of Andhra Pradesh. The
plaintiff also preferred a Memorandum of Cross Objections to the
·extent the trial Court's decree was against him. By its judgment
<lated August 22, 1963, the High Court allowed the appeal, holding that the will, Ex. B·4 was executed by Veeriah in a sound and
disposing state of mind and that the will was not only true but was
valid and t>inding upon the plaintiff. The High Court accordingly
diSll)issed the suit.
'The Memorandum of Cross Objections was
also dismissed.
The first question to be considered in this appeal is whether
1he will, Ex. B·4 was true and genuine and was executed by
Veeriah in a sound and disposing state of mind.
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It is not disputed that one Gangiah died leaving bis widow
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Rattamma and his only son through her called Veeriah and a
young daughter. The girl died 'without leaving any issue in the
year 1932. Veeriah was a little boy and it is not disputed that
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o. TILl,TAIAH v. T. v. SUBBAIAH (Ramaswami, J.)
475
be was below average in intelligence and understanding. Rattanuna
alongwith her son took up residence with her brother, Defendant
no. I who was a man of great wealth and influence in the village,
owning fifty acres of land and outstanding' credits to the extent
of Rs. 20,000/-. Rattamma's husband had left properties to the
extent of 13 acres of land. In spite of owning so much property
Veeriah was engaged as a cow-boy in tending cattle. In June
1939, he had an attack of typhoid, became bed-ridden and ultimately died of the disease on June 24, 1939. The case of tire
contesting defendants was that Veeriah executed the will, Ex. B-4
on June 17, 1939, that D.W. 4 wrote it and nine witnesses attested
it but the will was not registered in Veeriah's life-time. On October 15, 1939, defendant no. I and Rattamma presented the will,
Ex. B-4 before the Sub-Registrar, Chirala for registration. The
Sub-Registrar, however, refused to register the will by his order,
Ex. A-45 in W.C. 4 of 1939. Defendant no. 1 preferred an appeal before the District Registrar, Guntur but the appeal-was dismissed. Defendant no. 1 then filed O.S. no. 111 of 1940 in the
court of District Munsif, Bapatla against Ramayya (father of defendants 9 and 10), the plaintiff and jlattamma for a direction for
registration of the will. The District Munsif returned the will .to
defendant no. 1 for want of pecuniary jurisdiction. Defendant no.
1 presented it to the Subordinate Judge, Bapatla and got it numbered as O.S. no. 6 of 1941. The suit was ultimately dismissed
by the Subordinate Judge on the question of limitation. Defendant no. 1 and Rattamma filed O.S. no. 13 of 1942 in the Subordinate Judge's court, Bapatla for a declaration that the will was
genuine and valid. Ramayya filed a written statement and the
suit was ultimately decreed in favour of Defendant no. 1. and
Rattamma. The present plaintiff, Gorantla Tatbaiah was, however, not a party to that suit.
In the will, Ex. B-4 it is stated by the testator as follows :
" .... Typhoid condition has set in.
As no treatment has been effective in curing this condition I have
lost confidence that I will survive. Therefore I have
wholeheartedly made the following disposition regarding
my movable and immovable properties in order that
there may be no obstruction in future from any source
whatsoever.
That my mother Rattamma should be maintained
comfortably for her life-time and that in case there is disagreement between her and my material uncle.
Venkatasubbayya and they decide to live separately, my
mother, Rattamma. should enjoy the income of the
property mentioned in 'B' Schedule for her life-time
'-".ithout exercising any powers of disposition by way of
gift, sale etc., over the property and that after her life.
L7 Sup. C.1.168-6
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SUPRl!Mll COURT UPOJl.TS
[1968] 3 s.c.R.
time the entire property
mentioned in 'B' schedule
A
should devolve in my maternal uncle, V enkatasubbayya.
My maternal uncle, Venkatasubbayya shall enjoy the
entire properties mentioned in 'A' and 'B' Schedules
with absolute powers of disposition by way of gift, sale
etc."
In the will it is mentioned that V eeriah had sold his land on May
30, 1939 to defendant no. 4 and received an advance of Rs. 165/-
with the stipulation that the balance of sale price should be paid
at the time of registration. Veeriah also said that in case he did
not live long enough, defendant no. 1 should complete the sale
transaction and receive 'the balance of price fro.!ll defendant no. 4.
The will was wri)ten by one Ammanamanchi Sambiah, D.W. 4
the karnam of tl'ie village.
'There are 9 attesting witnesses of
whom three are dead. On behalf of the plaintiff two of the attestors P.Ws. 8 and 9 were examined and two attesting witnesses
were examine<! as Court witnesses 1 and 2. On behalf of defendants two attesting witnesses D.Ws. l and 6 besides the scribe
D.W. 4 gave evidence. P.W. 8 deposed that the testator did not
give any instructions or particulars for drafting the will. The testator was very weak and in a delirious state and he was not in a
position to put his thumb impression to the will. P.W. 9 is stonedeaf and he could not give proper evidence. He did not remember if Veeriah was raving and was tearing his clothes. D.Ws. 1,
4, 6 and 14 and C.Ws. 1 and 2 say that the testator was in a
sound and disposing state of mind. It was the testator who gave
instructions regarding the disposition of the properties. D.W. 4
wrote the will and read it over to V eeriah who approved of it and
put his thumb impression thereon. The evidence of P.Ws. 8 and
9 is therefore clearly in conflict with the evidence of C.Ws. 1 and
2 and D.Ws. 1, 4, 6 and 14. The evidence of C.Ws. 1 and 2 is
interested. It is admitted that C. W. 1 is related to defendant no. 1
and C.W. 2 is indebted to the first defendant to the extent of
Rs. 1,400/-. As regards D.Ws. 1, 4 and 6, the trial court bas
remarked that their testimony is not impartial and we see no reason
to take a different view as regards the effect of their testimony.
So far as D.W. 1 is concerned, be appears to have kbatha dealings
with the first defendant. D.W. 4 admitted that be and Venkataswamy were good friends and worked as karnam and Village
Munsif for 30 years.
There was . a case of misappropriation
against Venkataswamy and D.W. 4 deposed in his favour in that
case. It is in evidence that D.W. 6 is related to Ambati Veeriah
who is married to the first defendant's niece. With regard to P.Ws.
8 and 9 the High Court has remarked that they bad attested the
· will without any protest or adding any note of protest though the
testator, Veeriah was not in a sound state of mind at the time
of the execution of the will. In our opinion, this circumstance is
of no consequence nnd the High Court was noi justified in rejectB
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G, THATAIAH v. T. v. SUBBAIAH (Rattulswami, J.)
477
A
ing the evidence of P. Ws. 8 and 9 on this ground alone. On the
other hand, there are two important features in the present case
which throw a great deal of doubt as to whether the testator was
in a sound and disposing state of mind at the time of the execution of the will. It is the admitted position that the first defendant
took a prominent role at the time of the execution of the will by
sumnioning the scribe and the attesting witnesses. It is stated by
D.W. 1 that the first defendant also procured the writing materials
B
c
and the· black ink for affixing the thum~ impressions of the witnesses. It is also admitted that the will preferred the first defendant to the mother. Normally, the testator would have bequeathed
all his property to the mother and would have also given her ·power
to adopt a boy to perpetuate the lineage of the family.
Instead
the mother was given, in the will, a life interest in items 1 and 6
and the rest of the properties were given absolutely to <!efendant
no. 1. It is undisputed that the testator was 24 years of age at
the time of the execution of the will and that he was far below
the average level of intelligence and understanding and nobody
was prepared to oiler a girl in marriage to him. There is evidence
D
that Veeriah was "laC1dng in wits" and that he was employed for
tending cattle.
Further more, the testator was suffering from
typhoid fever at the time of the execution of the will and he died
a week thereafter i.e., on June 24, 1939. In Ex. B-4 it is recited
that the testator was ailing for about 15 days and had become
delirious.
According to D.W. 4 when he arrived Veeriah was
E
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lying on a cot and he was not in a position to sit up by himself.
Both D.Ws. 1 and 4 admit that the attesting witnesses and the
scribe had all assembled and waited· for nearly an hour.
Both
P.Ws. 8 and 9 say that at the time of the execution of the will
Veeriah was in a delirious state. D.Ws. 1, 4, 6, 14 and C.W. 1
all admit that the. testator was delirious on the day previous to the
execution of the will and also subsequent to the day of the exei:ution of the will.
These witnesses, however, state that the testator
was quite all right and in normal condition on the date of the execu~on of the wm.
It is difficult to accept this part of the defence
evidence.
Considering that the condition of the testator became
worse and he died a week thereafter it is difficult to accept the
~vidence of defence w!tnesses and of C.W. 1 that the testator was
m a sound state of mind on ,the date of the exeeution of the will
but he ~s in a delirious state the day before and the day after
the e:io:ecu~on ?f the will: In our opinion, the Subordinate Judge
was !1ght in .1!is conclusion that the testator was physically weak
Rl!d m a deli_nous men.ta! state at the time of the execution of. the
will. , We think the High C~urt had no justification for reversing
the view taken by the Subordmate Judge.on this point.
It is :-veil-established that in a case in which a will is prepared
~der circumstances wh~ch raise the suspicion of the court that
It does not express the mmd of the testator it is for those who pro-
478
SUP~ME COURT REPORTS
(1968) 3 S.C.R.
pound the will to remove that suspicion.
What are suspicious
circumstances must be judged in the facts and circumstances of
each particular case.. If, however, the propounder takes a prominent part in the execution of the will which confers substantial
benefits on him that itself is a suspicious circumstance attending
the execution of the will and in appreciating the evidence in such
a case, the court should proceed ill. a vigilant and cautious manner.
It is observed in Williams on "Executors and Administrators",
Vol. I, 13th Ed., p. 92 :
"Although the rule of Roman Law that 'Qui se scripsit haeredem' could take no benefit under a will does not
prevail in the Jaw of England, yet, where the person who
prepares the instrument, or conducts its execution, is
himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of
the court, and calls on 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 does express the true wUI of the deceased."
According to the decision in Fulton v. Andrew('), "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". "There is however no unyielding rule of law (especially where the ingredient of fraud en·
ters into the case) that, when it has been proved that a testator,
competent in mind, has had a Will read over to him, and hail thereupon executed it, all further enquiry is shut out". In this case,
the Lord Chancellor, Lord Cairns, has cited with approval the
well-known observations of Baron Parke in the case of Barry v.
But/in(').
The two rules of law set out by Baron Parke are:
"first, 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"; "the second is, 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 .iudicially satisfied that
the paper propounded does express the true will of the deceased."
In Sarat Kumari Bibi v. Sakhi Chand & Ors.,('} the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicions from the mind of the Court is ·not
confined only to cases· where the propounder takes part in the
(I) (1875) LR, 7 H.L 448.
(2) (183R) 2 Moo. P.C. 4RO, 482.
I)) 561.A. 62.
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G. THATAIAH v. T. v. SUBBAJAH (Ramaswami, J.)
479
execution of the will and receives benefit under it. There may be
other suspicious circumstances attending on the eXecution of. the
will and even in such cases it is the duty of the propounder to
remove all clouds and satisfy the conscience of the court that the
instrument propounded is the last will of the testator." This view
is supported by the following observations made by Lindley and
Davey, L. JJ., in Tyrrell v. Painton('):
"The ru1e in Barry v. But/in (2 Moo. P.C. 480);
Fulton v. Andrew [(1375) L.R. 7 H.L. 448]; and Brown
v. Fisher [ (1890) 63 L.T. 465] is not, in my opinion,
confined to the single case in which a will is prepared by
or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the. suspicion of the Court;
and wherever such circumstances exist, and whatever
their nature mai be, it is for those who propound the
will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done
that the onus is thrown on those who oppose the will
to prove fraud or undue influence, or whatever else they
rely on to displace the case made for proving the wilt"
(Lindley, L.J.).
"it must not be supposed the principle in Barry v.
But/in (2 Moo. P.C. 480) is confined to cases where the
person who prepares the will is the person who takes
the benefit under it-that is one state of things which
raises a suspicion; but the principle is that wherever a
will is prepared under circumstances which raise a wellgrounded suspicion that it does not express the mind of
the testator the Court ought not to pronounce in favour
of it unless that suspicion is removed." (Davey, L.J.).
It is in the light of these principles that the evidence adduced
in this case will have to be considered. As we have already pointed
out, there is abundant testimony in this case which proves beyond
doubt that the testator was physically in a weak condition and
that he was in a delirious State of mind at the time of the execution of the will.
It is admitted that the first defendant took a
prominent part in summoning the attesting witnesses and the scribe
and in procuring the writing materials for the execution of the
will.
There is also evidence that Veeriah Jost his father, Gangiah
when he was hardly 10 years of age and after Gangiah's death
the first defendant brought Rattamma and Veeriah to his house
and was looking after them.
The first defendant had therefore
considerable }nfluence over Veeriah and his mother Rattamma.
(I) (1894) P. 151, 157, 159.
r{ --
480
SUPIU!M'.B COURT IU!POllTS
[1968] 3 s.c.R.
There is also the circumstance that V eeriah was only 24 years
of age at the time of the execution of the will and he was slow
witted and below the average level of intelligence and understanding.
Having regard to the cumulative effect of all the circumstances we are of opinion that the will, Ex. B-4 was not executed
by V eeriah in a sound and disposing state of mind, and was not
legally valid and binding upon the plaintiff. We accordingly set
aside the finding of the High Court on this issue.
It is, however, not possible for us to finally dispose of this
a,Ppeal because the High Court has not examined the second question arising in this case, namely, whether the Hindu Succession
Act (Act XXX of 1956) is applicable to the case and whether
defendant no. 1 was the nearest heir to succeed to the estate of
the deceased V eeriah in preference to all others including the appellant, defendants 9 and 10. We therefore consider it necessary
that the case ·should go back to the High Court for hearing the
parties afresh and recording a finding on this question and to submit it to this Court within three months from the . date of receipt
of the record by the High Court. The parties will not be allowed
to give additional evidence in the case and the High Ci>urt will
submit a finding on the evidence already adduced by the parties.
The appeal will be placed for further hearing before this Ci>urt
after the finding is submitted by the High Court in accordance
with. the directions we have given.
V.P.S.
Appeal remanded.
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