# SUPREME COURT REPORTS [1959] Supp. H. VENKATACHALA IYENGAR v. B. N. THIMMAJAMMA & OTHERS

- **Citation:** [1959] Supp. 1 S.C.R. 426
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 18 of 1955
- **Bench:** Venkatarama Aiyar, P. B. Gajendragadkar, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1959-supp-h-venkatachala-iyengar-v-b-n-thimmajamma-others-1547
- **Pages:** 38

## Headnote

Will-Mode of proof-Pnus-Suspicious circumstances-Removal of such suspicion, if part of the initial burden on the propounder-Indian Evidence Act, r872 (I of r87z), ss. 45, 47, 67, 68Indian Succession Act, r9z5 (XXXIX of r9z5), ss. 59, 63.
The mode of proving a will does not ordinarily differ from
that of proving any other document except as to the special
requirement of attestation prescribed in the case of a will by s. 63
of the Indian Succession Act. Proof in either case cannot be
mathematically precise and certain and so the test should be one
of satisfaction of a prudent mind in such matters. The onus
must be on the propounder and in absence of suspicious circumstances. surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law
may be sufficient to discharge the onus.
Where, however, there are suspicious circumstances, the
onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine.
If the caveator alleges undue influence, fraud or coercion the
onus will be on him to prove the same. Where there are no such
pleas but the circumstances give rise to such doubts, it is for the
propounder to satisfy the conscience of the Court.
What are suspicious circumstances must be judged in the
facts and circumstances of each particular case. If 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 with an
open but nevertheless vigilant and cautious mind.
Barmes v. Hinkson, (1946) 50 C.W.N. 895, Fulton v. Andrew,
(1875) L.R. 7 H.L. 448, Barry v. Bullin, [1838] 2 Moo. P.C. 480,
V allasamy Servai v. Sivaraman Servai, (1929) L.R. 57 I.A. 96 and
Sarai Kumar Bibi v. Sakhi Chand, (1928) L. R. 56 I. A. 62, referred to.
Case-law discussed.
In the instant case the appellant, as the sole executor to a
will, brought the suit out of which the appeal arises, for a declaration that the testatrix was the owner of certain properties and
was as such entitled to dispose of them by the will and asked for
consequential reliefs purporting to give effect to the be'!uests
made by her. It appeared from the evidence that the appellant
took a prominent, if not a decisive, part in the execution of the
·-
' '
ll) S.C.R. SUPREME COURT REPORTS
427
will, which contained substantial bequests in favour of his sons.
I958
But there was no evidence to show that the draft was ever
approved by the testatrix or that the will was fully read out to H. Venkatachala
her and she knew its contents. The trial court decreed the suit
Iyengar
but the High Court dismissed the same.
v.
Held, that the High Court was right in setting aside the
B. N. Thimmafinding of the trial court that the will had been duly and validly
jamma
executed.
and Others
Held further, that the trial court was in error in holding
that the proof of signature in the instant case could raise a
presumption as to the testator's knowledge of the contents of
the will.
Surcndra Nath Chattcrji v. ]almavi Charan M11khcrji, (1928)
l.L.R. 56 Cal. 390, explained and approved.

## Text

_Characters 0–39,877 of 87,030. This is a partial read: ask again with offset=39877 for what follows._

.1.958
November IJ.
426
SUPREME COURT REPORTS [1959] Supp.
H. VENKATACHALA IYENGAR
v.
B. N. THIMMAJAMMA & OTHERS
(VENKATARAMA AIYAR, P. B. GAJENDRAGADKAR
and A. K. SARKAR, JJ.)
Will-Mode of proof-Pnus-Suspicious circumstances-Removal of such suspicion, if part of the initial burden on the propounder-Indian Evidence Act, r872 (I of r87z), ss. 45, 47, 67, 68Indian Succession Act, r9z5 (XXXIX of r9z5), ss. 59, 63.
The mode of proving a will does not ordinarily differ from
that of proving any other document except as to the special
requirement of attestation prescribed in the case of a will by s. 63
of the Indian Succession Act. Proof in either case cannot be
mathematically precise and certain and so the test should be one
of satisfaction of a prudent mind in such matters. The onus
must be on the propounder and in absence of suspicious circumstances. surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law
may be sufficient to discharge the onus.
Where, however, there are suspicious circumstances, the
onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine.
If the caveator alleges undue influence, fraud or coercion the
onus will be on him to prove the same. Where there are no such
pleas but the circumstances give rise to such doubts, it is for the
propounder to satisfy the conscience of the Court.
What are suspicious circumstances must be judged in the
facts and circumstances of each particular case. If 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 with an
open but nevertheless vigilant and cautious mind.
Barmes v. Hinkson, (1946) 50 C.W.N. 895, Fulton v. Andrew,
(1875) L.R. 7 H.L. 448, Barry v. Bullin, [1838] 2 Moo. P.C. 480,
V allasamy Servai v. Sivaraman Servai, (1929) L.R. 57 I.A. 96 and
Sarai Kumar Bibi v. Sakhi Chand, (1928) L. R. 56 I. A. 62, referred to.
Case-law discussed.
In the instant case the appellant, as the sole executor to a
will, brought the suit out of which the appeal arises, for a declaration that the testatrix was the owner of certain properties and
was as such entitled to dispose of them by the will and asked for
consequential reliefs purporting to give effect to the be'!uests
made by her. It appeared from the evidence that the appellant
took a prominent, if not a decisive, part in the execution of the
·-
' '
ll) S.C.R. SUPREME COURT REPORTS
427
will, which contained substantial bequests in favour of his sons.
I958
But there was no evidence to show that the draft was ever
approved by the testatrix or that the will was fully read out to H. Venkatachala
her and she knew its contents. The trial court decreed the suit
Iyengar
but the High Court dismissed the same.
v.
Held, that the High Court was right in setting aside the
B. N. Thimmafinding of the trial court that the will had been duly and validly
jamma
executed.
and Others
Held further, that the trial court was in error in holding
that the proof of signature in the instant case could raise a
presumption as to the testator's knowledge of the contents of
the will.
Surcndra Nath Chattcrji v. ]almavi Charan M11khcrji, (1928)
l.L.R. 56 Cal. 390, explained and approved.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
18 of 1955.
Appeal from the judgment and decree dated March
20, 1951, of the Mysore High Court in R.A. No. 155 of
1947-48, arising out of the judgment and decree dated
December 19, 1947, of the Court of Sub-Judge, Mysore,
in 0. S. Suit No. 44 of 1946-47.
S. I{. Venkataranga Iyengar and K. Keshava Iyengar,
for the appellant.
A. V. Viswanatha Sastri and K. R. Choudhry, for
responde11t No. I.
1958. November 13. The Judgment of the Court
was delivered by
GAJENDRAGADKAlt, J.-This appeal arises from a Gajendragadkar ].
suit brought by the appellant in the court of the Subordinate Judge, Mysore, as the sole executor of the
will alleged to have been executed by one Lakshmamma on August 22, 1945, (Ex. A). In this suit the
appPll<mt claimed a declaration that the said Lakshmamma was the owner of the properties mentioned in
the schedule a.ttached to the plaint and as such was
entitled to dispose of them by a will ; and he asked for
consequential reliefs purporting to give effect to the
bequests made by the said will. The schedule attached
to the plaint describes the properties covered by the
will under five items. First three items in the schedule
refer respectively to 5, 4 and 4 agricultural lands at
Hampapura village, whereas the fourth item includes
428
SUPREME COURT REPORTS
[1959] Supp.
r95B
9 lands at Arjunahalli village and the last item is a
H. Vrnkata,hal<t v
1
acant site in Hamp
1
apura vidllage.
Acc(lrding
1
to th
1
e
Iyenga•
p aint, under the wil respon ent 1 was entit ed on y
v.
to a life interest in items 1 and 2 and that on her
B. N. Thimmadeath the said items would vest in respondents 2 to 4
jamma
and respondent 5 respectively. Since respondent 1
and Othm
was in possession of all the five items, the appellant
Gajcndrngadka' /.claimed a decree for possession against respondent 1 in
· respect of items 3, 4 and 5 and a declaration that respondent 1 was to have only a life interest in items 1
and 2.
By his plaint the appellant also claimed to
recover Rs. 2,100 which had been collected by respondent 1 by way of income from the suit lands and a
further prayer was made for the payment of current
mesne profits by respondent 1.
Before referring to the pleadings of the parties it
would be relevant to mention the material facts in
regard to their relationship which are not· in dispute.
One Annaji Iyengar who died in July 1903 left behind
him his adopted son, the appellant, and two daughters
Gundarnma alias Ranganayakamma who is still alive
and Lakshmamma alias Achamma who is alleged to
have executed the will in suit and died thereafter on
September 26, 1945, at Mandya. Respondents 2 to 4
are the sons of the appellant. Lakshmamma :was
martied to Sadagopalachar who died in December
1908. The couple had· three children, a son named
Narayana Iyengar who died on January 14, 1944,
without any issue and left behind him his widow respondent 1 ; and the two remaining children of Lakshmamma were daughters Thirumalamma and Yadugiramma.
Both of them are dead. Thirumalamma was
married to one G. Parthasarathy Iyengar by whom
she had a son of weak intellect, who died pending
litigation, and three daughters Neelu,
Jaye. a.nd
Padmini. Y adugiramma wa.s married to Kalbaga.l
Garudachar and by him she ha.d a. son Na.rasimha
Iyengar, respondent 5, and daughter Lilly.
Ka.Iba.gal
Garudachar had a son S. G. Ka.Iba.gal (hereinafter described as Junior Kalbagal) from his first wife. Jaya
was married to Kalbagal Junior. The claim made by
the appellant under the will is resisted by respondent I.
(1) S.C.R.
SUPREME COURT REPORTS
429
Respondents 2 to 5 have not appeared in the proceedz95B
in gs.
H. Venkatachala
According to the case set out by the appellant in
Iyengar
his plaint Annaji Iyengar had made a gift of properv.
ties, items 1 and 2, in favour jointly of Lakshmamma
B. N. Thimmaand Sadagopalachar under a registered deed of gift on
a!:~n;,,:,s
February 16, 1902 (Ex. D). It was also alleged that
the said Annaji Iyengar had executed a will on Augustt;ajendragadl1ar ].
31, 1901, (Ex. B2(a)) under which he had bequeathed
in favour of Lakshmamma and Sadagopalachar hypothecation bonds to the extent of Rs. 10,320 as gift with
the express stipulation that the survivor of the legatees
should take the whole of the bequest by survivorship.
The appellant alleged that Sadagopalachar was a man
of very moderate means and had given up his petty
job in the registration department in order to manage
the properties received by him and his wife from
Annaji Iyengar. During the course .of the management Sadagopalachar used the cash of Rs. 10,320
received by bequest under the will of Annaji Iyengar
to buy some immoveable properties including items 3
and 4. Since Sadagopalachar pre-deceased his wife
Lakshmamma, all his rights in the properties acquired
under the gift deed as well as those subsequently
purchased deyolved on Lakshmamma alone by survivorship. That is how she became the absolute owner
of the said properties. Alternatively it was alleged by
the appellant that even if survivorship did not apply
and so her son Narayana Iyengar acquired interest to
half the share in the properties covered by the gift
deed, he had during his lifetime sold away considerable properties of his father and mother much above
the value of his half share and in consequence the
remaining properties which represent Lakshmamma's
half share became her absolute properties. On this
alternative ground the absolute title of Lakshmamma
with regard to all the properties in suit wa11 set up.
The appellant thus claimed that Lakshmamma was
entitled to make a will and asked for a declaration in
that behalf and consequential reliefs so as to give
effect to the terms and dispositions of the will. According to the appellant the will propounded by him was
430
SUPREME COURT REPORTS
[1959] Supp.
the last testament of Lakshmamma and it had been
H. Venk:achala exo.cuted by h~r voluntarily an.d of her own free will
Iycagar
wlule she was ma sound and disposing state of mind.
v.
Respondent I disputed the appellant's claim. She
B. N. Thimmadenied that Annaji Iyengar had made a will on
1d"';~~·
August 31, 1901, or that Lakshmamma and Sadagopa-
""
"'
lachar had received the moveables of the value of
Gajcndragadkar J. Rs. 10,320 under it. According to her, the gift deed
(Ex. D) did not provide for devolution of interest by
survivorship; she pleaded that Lakshmamma had
transferred all her interests in the properties comprised
in the gift. deed in favour of her husband Sadagopalachar who then became their sole owner. Respondent I
did not admit that the properties subsequently purclrnsed by Sadagopalachar including items 3 to 5 were
purchased with any monies bequeathed to him and
his wife by Annaji Iyengar; according to her, Sadagopalachar had U1ade these purchases with his own
fonds.
Hespondent l's case was that, after the death
of his father Sadagopalachar, her husband Narayana
Iyengar became the absolute owner of all the properties and so Lakshmamma was not competent in law to
make a will in respect of any of them. She further
alleged that the will set up by the appellant was not
genuine or valid and that at the material time Lakshmamma was not in a sound and disposing state of
mind. She contended that the will had been brought
into
existence through the machinations of the
appellant and she disputed the appellant's right to
bring the present suit.
On these pleadings the learned trial judge framed
fifteen issues.
He found that the will executed by
Ann:iji Iyengar on August 31, 1901, was genuine and
ntlid; and that the rule of survh-orship was applicable :is between the legatees inter se in respect of the
properties conveyed by the said will. It was, however,
held that the rule of survivorship did not apply to the
properties gifted to Sadagopalachar and Lakshmamma
under Annaji's deed of gift (Ex. D) which was held to
be genuine and valid. In regard to the properties
subsequently purchased by Sadagopalachar the learned judge said that " in fairness to the parties he would
(1) S.C.R.
SUPREME COURT REPORTS
431
like to hold that various survey numbers in items 3
x95a
and 4 had been purchased by Sadagopalachar out of H
Venkatachala
the joint income from the properties bequeathed to
· Iyengar
him and his wife by Annaji as also from the properv.
ties and through income which he got at a partition
B. N. Thimmabetween himself and his coparceners " (Ex. F).
'The
jamma
purchases made by Narayana Iyengar were held to
and Others
have been made out of the income of the properties of Gajendragadkar 1.
his father and of his mother. The learned judge
rejected the plaintiff's case that Narayana Iyengar
had disposed of his properties equivalent to his right
under the gift deed of Annaji (Ex. D) and held that he
was the owner of the properties which had vested in
his father. In the result, according to the learned
judge, Lakshmamma had a half share in all the properties in suit and so she was competent to make the
will in respect of the said share. The learned judge
then considered the question as to the execution of the
will set up by the appellant and came to the conclusion that the will (Ex. A) was genuine and valid to the
extent of the share belonging to the testatrix. The
learned judge also found that the suit was maintainable, was not barred by time and had been properly
filed.
As a result of these findings the learned judge
declared that Lakshmamma was the full owner of half
the share in the scheduled properties and that respondent 1 under the will had only a life interest in respect
of the said half share in items 1 and 2.
As a consequence of this declaration the decree passed by the
learned judge directed respondent 1 to put the appellant in possession of Lakshmamma's half share in
items 3, 4 and 5; it also ordered respondent 1 to pay
to the appellant a sum of Rs. 1,050 out of the past
mesne profits recovered by her. An enquiry into future
mesne profits was also directed under 0. XX, r. 12. In
view of the fact that the appellant had succeeded only
in regard to half the properties in suit the decree asked
the parties to bear their own costs.
Against this decree respondent 1 preferred an appeal
in the High Court of Mysore; and the appellant filed
cross objections. The High Court held that'the appellant had not established that when Lakshmamma was
432
SUPREME COURT REPORTS [1959] Supp.
1958
alleged to ha. ve executed the will she was in a. sound
II. V•nkatachala and disposing state of mind or that it was her will in
Iy<ngar
the sense that it represented her intentions. Accordv.
ing to the High Court, in the light of this finding " it
n. N. Tlmnrnamight be unnecessary to consider the other issues in
• jamma
the case". Even so the High Court proceeded to
and Othm
indicate its conclusions on two of such issues. It held
Gaj•ndr-;g-;;dkar 1. that the appellant had entirely failed to prove that the
money for the purchase of items 3, 4 and 5 came out
of any bequest under Annaji's will (Ex. B2(a)) or the
incomes from the properties covered by the gift deed
(Ex. D) and so in its opinion Lakshmamma could not
claim any share in the said properties. On the other
hand, the High Court indicated that it was inclined to
accept the plea raised by respondent 1 that Lakshmamma had transferred all her interest in the properties comprised in the said deed of gift in favour of
her husband Sadagopalachar ; and-~ince in its opinion
" Lakshmamma. at no time appears to have claimed
that she had any interest in those properties, there was
considerable force in the argument urged by respondent 1 that Lakshmamma must have relinquished her
interest.in the said properties and waived her rights in
.favour of her husband". The High Court thought
that the lea.rued trial judge had not fully considered
a.II the material bearing on this point and so was in
error in holding that at the relevant date Lakshma.mma had a subsisting interest in ha.If the share
even in the suit properties, items 1 and 2. Having thus
indicated its decision on the two issues the High Court
has observed that even if it had found in favour of the
appellant on these two points it would not have been
of any help to him because his case must inevitably
fail when it is held that the will set up by him was not
proved to be the la.st will and testament of Lakshmamma.. In the result the appeal preferred by respondent 1 was allowed, the cross-objections filed by the
appellant were rejected and his suit was dismissed. In
the circumstances of the case the High Court made no
orders as to costs.
The appellant then applied for and obtained a
certificate from the High Court that the decision under
(1) S.C.R. SUPREME COURT REPORTS
433
appeal is one of reversal and it involves a claim
z958
respecting properties of the value of not less than H
Venkatachala
Rs. 20,000. In pursuance of this certificate the High
· Iyengar
Court ordered that the appeal to this Court should be
v.
admitted ; and so this appeal has come to this Court.
B. N. ThimmaSince the main contention raised by the appellant is
Jamm"
and Others
directed against the finding of the High Court that the
_
will in question is not proved to be the ]a.st wi11 and Gajendriigadkar J.
testament of Lakshmamma, it would be necessary to
refer to the broad features, and dispositions, of the will
and the evidence adduced by the appellant to prove its
execution. At the material time Lakshmamma was
about 64 yea.rs of age. She usually resided at Hampapur; but about a month before the execution of the will
she had gone to Mandya to attend the marriage in the
house of Junior Kalbagal. After the marriage was over
she would normally have returned to Hampapur but she
fell ill and had to extend her stay with Junior Kalbagal.
The appellant's case is that she had told him that she
wanted to execute a will and had given him instructions in that behalf. This talk had taken place between her and the appellant about a year before the
execution of the will. The appellant, however, did not
find time to get the will written. When Lakshmamrna
fell ill at Mandya the appellant had gone to visit her
and she pressed the appellant to prepare the draft of
her will in accordance with her instructions. So the
appellant prepared a draft at Mysore a day prior to
the execution of the will. He then went to Mandya by
the morning train on August 22, 1945, and the will
was got written about 11 or 11-30 a.m. The appellant
had the draft in his hand from which he dictated to
the scribe Chokkanna (P. W. 3) who wrote the will.
After the will was written the scribe took it to the
adjoining room where Lakshmamma was lying in bed.
The will was then read out to her and was signed by
her in five places (Exs. A-1 to A-5). Subsequently it
was attested by two witnesses Krishnamurthy Rao
(P. W. 1) and Narasimha Iyengar (P. W. 2). Some
time later during the course of the day the Sub-Registrar came to the house of Junior Ka.Iba.gal and in his
55
434
SUPREME COURT REPORTS [1959'.J Supp.
r958
presence the will (Ex. A) was duly registered.
On the
·•
same day at about the same time Lakshmamma
Ji. Venkatachala
Iy•ngar
executed a power of attorney in favour of the appellant
v.
(Ex. EE) and this document was also duly attested
B. N. Thinuna· aml. registered. The appellant has examined himself
jamma
(P. W. 7), the two attesting witnesses (P. W. I and P.
and Others
. W. 2), the scribe (P. W. 3) and Junior Kalbagal (P.
GajendMgadl.ar J. W .. 4) in support of his case that the will was duly and
validly executed by Lakshmamma.
The will is a fairly long document and its English
translation spreads over eight printed pages. Though
the dispositions in the will have occupied a small portion of the document it contains elaborate arguments
in support of the a verment of the testatrix that she
was entitled to make a will in respect of all the properties mentioned in the will. The will begins with the
recital about the illness of the testatrix and says " as
I have felt in my mind that it is necessary to mention
here certain matters clearly so that there may not be
any kind of obstacles and obstruction at the instance
of any in respect of my purposes coming into effect
after iny death I have got them written in detail."
Then, the will refers to the gift deed executed by
Annaji jointly in favour of the testatrix and her husband Sadagopalachar as well as to Annaji's will under
which hypothecation bonds of the value of Rs. 10,000
were bequeathed to both of them. The will then refers
to the fact that Sadagopalachar was poss~ssed of only
a house and a carriage shed and owned no other
ancestral property. Even the said house was of" very
ancient times and was· in a dilapidated condition".
According to the will Sadagopalachar held a small
government job which he resigned in order to live in
Hampapur and to look after the property obtained by
gift from Annaji. " It was my opinion ", says the will,
"that he was probably fooking after my share of
the property in addition to his own and was improving the same. It is but natural to think in this
manner mutually in respect of husband an<l wife".
Then the will refers to the subsequent purchase of
certain lands and avers that the amounts received by
the couple from Annaji were utilised for the 8aid
(1) S.C.R. SUPREME COURT REPORTS
435
purchase. The will then refers to the death of Sada.gox95a
Pala.char in 1908 and describes the management of the
·
Ji. V cnl<alachala
properties during the lifetime of N arayana Iyengar the
Iyengar
son of the testatrix. It says that during Narayanan's
v.
minority the testatrix sold some properties at the
B. N. Thimmaadvice and with the help of her Brother-in-law
jamrm•
Srinivasa Iyengar for debts "without considering
and Others
whether it was my s~1are or my husband's share"; she G«jendr:g-;;-dkar' J.
also sold gold and diamond ornaments to meet the
urgent needs of thu family. After Narayanan became a -
major he began to manage the property in consultation v;;ith Srinivasa Iyengar. Narayanan wanted to
build tt house for residence in Mysore and so he sold
some wet lands situated at Sarvamanya Gaudhanahalli
village. Narayanan had no issue and so he spent
generously at the time of the marriage of the three
daughters of his younger sister Thirumalamma. Besides he got ornaments prepared moderately for all of
them and purchased and gave them as pin money
some wet lands situated at Arjunahalli
village.
Narayanan purchased and gave some wet lands at the
same village to the son of his second younger sister
Kalbagal N arasimha Iyengar and to Singamma and
Lalithamma. Then the will refers to certain purchases
made by Narayanan and adds that the purchase of
the said lands nominally stands in his name though
the right to the property vested in the testatrix. The
will then states that Narayanan had no issue and so he
treated his younger sister's children as his own, attended to their education, marriage and other auspicious
functions with great zeal.
Having disposed of his
properties for the benefit of the said ch'i.ldren Narayanan considered that since he was the only son of the
testatrix her share of the property was sufficient for the
maintenance of himself and his wife and so he had no
worry on that account. In other words, the will alleges
that as a result of the alienations made by Narayanan
he ceased to have any share in the properties that
remained and in consequence the said properties belonged exclusively and solely to the testatrix. Then the
will refers to the insuranc.e amount of l{s. 4,000 which
was paid to respondent 1 on Naraya.nan's death; and
436
SUPREME COURT REPORTS [1959] Supp.
1958
in regard to Narayanan's illness which ultimately
resulted in his death the will adds that the testatrix
H.
Venl~atachala
Iyengar
l;terself had provided separate money for his medicinal
v.
and family expenses an_d that she had given Naraya8.N. Thimmanan Rs. 3,000 which had been deposited with her
jamma
Brother-in-law and the Reserve Bank share of Rs. 500
and Others
to enable him to purchase a house at Mysore.
The
Gajendragadkar '·will then refers to respondent in ~rms of affection and
• states that the testatrix was makmg a bequest for life
of items 1 and 2 in her favour in order that she may
lead her life without any difficulty..
"Except me",
says the will, "no one has any right whatever to the
scheduled properties. They should go only to ·those
for w horn it is intended here according to my desire
after my death but there is no reason whatsoever for
their going to my agnates or any others. I am at full
liberty to make dispositions hereby according to my
desire".
After making these elaborate averments the will
proceeds to make dispositions of items 1 to 5.
Items
1 and 2 are given to respondent for life. "She shall
have no right such as hypothecation, sale, gift, exchange, etc., of the said properties nor has she any
right whatever to create liability in any way in favour
of others". After her death respondents 2 to 4 are
given item 1 and item 2 is bequeathed to respondent
5.
Respondent 5 is described as an heir by the testatrix after her death and has been authorised to perform all her ceremonies.
Item 3 is bequeathed to
respondent 5 and item 4 to respondents 2, 3 and 4.
Out of the 15 acres of land included in item 4, the '
bequest in regard to 9 acres is burdened with a charge
in favour of certain legacies and charities mentioned
in the will.
The recipients of the legacies who are the
relatives of the testatrix are named, and the charities
are also specifically mentioned. Rs. 500 each have to
be paid to her eldest daughter's third daughter
Padminiamma, to her eldest daughter's son Thirumalachar and to Sudhakalyani, the daughter of her eldest
daughter's second daughter Jaya and to Nagendra,
son of Ncclamma, the eldest daughter of her eldest
daughter.
Besides, Rs. 1,000 had to be used for
(1) S.C.R.
SUPREME COURT REPORTS
437
conducting service in the Sannadi of LakshmiI958
narayanaswamy at Ha.mpapur on the respective dates H
Venkatacha/a
of death of her husband, her son and herself. A sum
· Iyengar
of Rs. 500 has to be endowed for the Nandadipa
v.
service in the name of Narayanan in the Sanna.di ·of B.N. ThimmaThirupati Venkataramana.swami, and Rs. 500 for
jamma
similar service in the name of Sadagopalacha.r in the
and Others
Sannadi of Qhanna.keshava.swe.mi, Belur, the place of Gaj•"";;;dkar 1
the family in Hassan District. An amount of Rs. 1,000
·
has to be utilised for scholarship to poor students. In
all Rs. 5,000 have to be spent for these legacies and
charities. The will directs that if respondents 2 to 4
fail to make these payments within three yea.rs after
the death of the testatrix the appellant who is appointed
the executor under the will should, after the expiry of
the said three years, sell for reasonable price the lands
charged in that behalf and should pay the full amount
realised by such sale to carry out the aforesaid charitable works and to give effect to the legacies mentioned in the will. The will then avers that after her death
the document would remain with the appellant and it
adds that the testatrix has not executed any prior will
but that in case any such will has been executed by
her the same stood cancelled by the execution of the
present will. The will then repeats the averment
about the title of the testatrix and states that when
Narayana Iyengar was aiive he had sold a.bout 17
a.ores of land situate at Ad.1J.gur and other places for
purchasing lands at Arjuna.ha.Hi village for his sisters'
children and so the testatrix had full liberty to make
a disposition in respect of the scheduled properties
which were her own. The will also adds that though
the said properties stand in the name of her son and
rent notes in respect of them a.re similarly executed in
favour of her son that does not affect her title to the
said properties in any way.
These a.re the broad
features, and dispositions, of the will in question.
We would now indicate briefly the evidence led by
the appellant on the question a.bout the valid execution of the will. We have already mentioned that the
two attesting witnesses, the scribe and the appellant
himself have given evidence in support of the will.
438
SUPREME COURT REPORTS [1959] Supp.
'958
Mr. Krishnamurthy Rao (P. W. 1) was a medical
H. Venkatochala officer to the Mysore Sugar Company, Mandya, and he
Iyenga,
knew the Junior Kulbagal who was working as a Cane
v.
Superintendent in the said factory. This witness was
B. N. Thimmacalled by Kalbagal to attest the will and so he went to
jamma
his house and saw that Lakshmamma was lying in 'her
••d Othm
bed since she had an attack of paralysis on her left
Gajend>agadha' J. side.
According to the witness her uiind was clear
and he attested the will after ascertaining from her
that the document had received her approval.
'.l.'he
witness was cross-examined in regard to his statement
that he had treated Lakshmamma and it was brought
out in his answers that though she may have been
under his treatment for about a week he could not say
if her name found a place in the hospital register. He,
however, added that even patients who are treated in
their houses would be mentioned in the hospital register if they come and take medicine from the hospital.
The witness admitted that the will was not written in
his presence and that it was already written before he
went to attest it. When the witness was asked about
the details of his signature on the will he gave answers which showed that he did not have any clear
recollection as to what happened on that date.
First
he stated that he had put one signature but ultimately
admitted that he had signed twice, once w bile he attested the will and also when the Sub-Registrar registered it in his presence. It fact some of his answers
suggest that the witness did not even remember that
he was present when the Sub-Registrar arrived and
registered the document. The witness stated that the
will was read in his presence but he did not know if
the whole was read or only a few portions of it.
The next attesting witness is Narasimha Iyengar
(P. W. 2).
He was employed in Mandya Sugar Company Distillery. According to him the will was written in his presence and Lakshmamma put her signature on it also in his presence. In cross-examination,
however, it appeared that his statement that he was
present when
the will was written may not be
accurate.
He did not know whether there was
any draft already prepared and he saw none.
(1) S.C.R. SUPREME COURT REPORTS
439
According to him, after the will was written the appelr9JB
lant read out the will to Lakshmamma but according
to the appellant the will was read out by the scribe. H. Ve..Aataeliala
Iyengar
He stated that after the wiU was attested both he and
v.
P. W. I left the place but it is clear that P. W. I was n. N. Himmapresent at the time of registration. The witness even
jamma
did not know whether Lakshmamma had any attack
and Others
of paralysis. The evidence ofthe scribe'(P. W. 3) andG . d-dk
1
of the appellant (P. W. 7) clearly negatived Mr. lyena1"' raga ar
·
gar's statement that he was present at the time the
·
will was written. The evidence of both the scribe and
the appellant unmistakably filhows that Mr. Iyengar
was not present when the will was written.
Chokkanna (P. W. 3) the scribe is a relative of
Kulbagal. The mother of Chokkanna and Kulbagal's
mother are sisters. He has written the will. According
to him Lakshmamma stated that she wanted to
execute a will and that she would agree to what the
appellant would get written. The witness stated that
the will was written according to the dictation of the
appellant in the presence of Lakshmamma.. The
appellant had a draft with him. Except the appellant,
Lakshmamma and the scribe none else was present
when the will was written. The attesting witnesses
came after the will was written. The witness then
read the will to Lakshmamma. who consented to the
recitals and signed it. It may he pointed out that the
account given by the scribe in respect ·of the writing
of the will is somewhat different from the acc.\)llnt
given by the appellant. The appellant has. stated
that the will was written in one room and, Lakshmamma wa.s lying in the adjoining room an,ci it was
after the will was written that the scribe went into
the adjoining room and read the will to her so that the
statement of the scribe that the will was written in
t.he presence of Lakshmamma is not supported by the
appellant. In fact the appellant•s statement is corroborated by the evidence of Junior Kulbagal in this
matter.
Mr. Kalbagal (P.W. 4) does not seem to know about
t,lw intention of the testatrix to execute the will. It
was w h~n plaintiff asked him to. get some attesting
440
SUPREME COURT REPORTS [1959] Supp.
witnesses that he came to know that a will was going
H. Venhatachala to be .executed. He then went and brought P. W. 1
and P. W. 2 for attestation. This witness admitted
that Lakshmamma was ill and was unable to get up
Iyengar
v.
B. N. Thimmaand leave her bed. He heard about her intention to
jamma
execute the will about 9 a.m. in the morning. He was
•nd Others
not present when the will was written. He was, howGajend.-::C-:;dkar 1. ever, present when the will was read out by the scribe
to Lakshmamma. His father Kalbagal Garudachar
and his wife Jaya were also present. The witness
then stated that the appellant brought the Sub-Registrar at about 5-30 p. m. and the Sub-Registrar registered the will. It would, however, appear from the
application (Ex. VI) made to the Sub-Registrar inviting him to come to Kalbagal's house to register the
will that it was not the appellant but the witness
himself who had brought the Sub-Registrar.
The last witness in support of the will is the appellant himself, (P.W. 7). He has spoken to the instructions received by him from Lakshmamma a year before
the date of the execution of the will and he has stated
that he prepared a draft at Mysore a day before the
will was executed and that the will was written by
the scribe as he dictated the contents from the said
draft. He had told Lakshmamma about what the
draft contained but he admitted that the draft was
not read out to her. The witness has then referred
to the fact that the will was read out by the scribe
to Lakshmamma and she consented to it, whereupon
it was signed ·by her and subsequently attested by the
two attesting witnesses. Then the witness refers to
the registration of the document at about 5-30 p.m.
On the morning of the day when the will was executed
the witness was told by Lakshmamma that she would
execute a power of attorney though the witness had
not asked for it_ A power of attorney was accordingly
prepared and duly executed and registered. That in
brief is the evidence on which the appellant relies.
It would be convenient at this stage to refer briefly
to the reasons given by the courts below in support
of their respective findings.
The learned trial judge
put the onus of proving the will on the appellant but
(I) S.C.R. SUPREME COURT REPORTS
441
he observed that " the proof that is necessary to
r9ss
establish a will is not an absolute or a conclusive H v -kh 1
U:7h
•
. d .
l
h
f
ld
.
en alac a a
one.
n
at is require is on y sue proo as won
Iyengar
satisfy a prudent man".
v.
The learned judge then considered the evidence of B. N: Thimmathe two attesting witnesses and the scribe and observ-
· 1dam0m
11a
1
I
an
I er.<
ed that" there can abso ute y be no doubt that P.W. 3
_
·
wrote Ex. A at the time when it is said to have beenGajendragadkar J.
written ". He was of the opinion that the evidence of
the scribe fully corroborates the evidence of P. W. I
and P. W. 2.
The learned judge then mentioned the
fact that P. W. 4 who supported the appellant is no
other than the husband of Lakshmamma's granddaughter. The evidence of the appellant himself was
considered by the learned judge and his conclusion
was that " it had to be taken that Ex. A is a will
executed by Lakshmamma and the signatures, Exs.
A-1 to A-5 are those ofLakshmamma ". The argument
urged by respondent I that Lakshmamma could not
have understood the contents of Ex. A was rejected
by the learned judge and he observed that" when it is
proved that Exs. A-1 to A-5 are signatures of Lakshmamma and that she executed Ex. A, it is to be presumed that the testatrix had the knowledge of the
contents of the will". In the end the learned judge
thus recorded his finding: "In view of the evidence
and the presumption referred to above I think we
deed not have any hesitation in holding that Lakshmamma executed Ex. A having fully understood the
nature of Ex. A and the recitals made therein".
The High Court, on · the other hand, has taken a
contrary view.
The High Court thought that the
evidence adduced by the appellant to prove the execution of the will was not satisfactory. It then, examined the said evidence in some detail, criticised the
discrepancies appearing in the said evidence, considered the probabilities and concluded that, on the whole,
the said evidence would not justify the finding that the
will had been duly executed by the testatrix.
The
High Court also thought that the appellant's version
about the instructions given by Lakshmamma to him
56
442
SUPREME COURT REPORTS [1959] Supp.
•958
in the matter of the execution of the will was highly
improbable ; and, according to the High Court, the
H. Ve11hatacllala whole evidence of the appellant appeared to be unIye"!gar
v.
satisfactory.
The High Court then considered the
B. N. Himm•· question of onus and observed that since the appellant's
jamm•
sons had received a substantial benefit under the will
and Oihers,
and since he had ta.ken a leading pa.rt in its execution,
G . d-,. J the onus was heavy on him to remove the suspicions
•J•• raga ""'
·
d'
h
·
f h d
d
a.tten mg t e execution o t e ocument an
to establish that Lakshma.mma. had really understood its
contents, had approved of them and had put her
signatures on it when she was in a. sound and d isposing state of mind. It appears that the High Court
also felt that the dispositions ma.de by the will were
unnatural and improbable ; in particular it took the
view that since the appellant had come into the family
of Anna.ji by adoption it was very unlikely that his
sons should have received such a substantial benefit
under the will. In fact the judgment of the High
Court appears to indicate that the High Court was
inclined to hold that the testatrix may not have been
in a sound and disposing state of mind at the material
time. It is on these findings that the High Court
reached its final conclusion that the appellant had failed to prove the due and valid execution of the will.
What is the true legal position in the matter of proof
of wills ? It is well-known that the proof of wills
presents a recurring topic for decision in courts and
there are a large number of judicial pronouncements
on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking
to prove a document and, in deciding how it is to be
proved, we must inevitably refer to the statutory provisions which govern the proof of doctiments. Sections
67 and 68 of the Evidence Act are relevant for this
purpose. Under s. 67, if a document is alleged to be
signed by any person, the signature of the said person
must be proved to be in his handwriting, and for
proving such a handwriting under ss. 45 and 47 of
the Act the opinions of experts and of persons
acquainted
with the handwriting of the person
concerned are made relevant.
Section 68 deals with
(1) S.C.R. SUPREME COURT REPORTS
443
the proof of . the execution of the
document
i95B
requil'ed by law to be attested; and it provides H
Venkatachala
that such a document shall not be used as evidence
· Iyengar
until one attesting witness at least has been called
v.
for the purpose of proving its execution.
These
JJ. N. I"himmaprovisions prescribe the requirements and the nature
Jmnnu•
of proof which must be satisfied by the party who
and Others
relies, on a document in a court of law. Similarly, Gajendragadkor 1
ss. 59 and 63 of the Indian Succession Act are also
·
relevant. Section 59 provides that every person of
sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this section indicate what is meant by the expression " a
person of sound mind " in the context.