H. Venkatachala Iyengar v. B.N. Thimmajamma

A man claimed to be the sole executor (the person named to carry out the wishes of a dead person) of his adoptive sister's will (a document disposing of property after death). His own sons were the main beneficiaries, and he had drafted and dictated the will himself. The Supreme Court refused to accept the will. It explained how a will is proved and what the person who puts it forward must do when the circumstances raise suspicion.

Quick Revision

Parties

H. Venkatachala Iyengar — appellant; plaintiff in the suit. He was the adopted son of Annaji Iyengar and the brother, by adoption, of the testatrix. He sued as the sole executor of the will.

B.N. Thimmajamma — respondent No. 1; defendant. She was the widow of Narayana Iyengar, the testatrix's son. She was in possession of all five items of property and resisted the claim.

Respondents 2 to 4 — the sons of the appellant. They were given items 1 and 4 under the will after the life interest of respondent 1. They did not appear in the proceedings.

Respondent 5 (Narasimha Iyengar) — the son of Yadugiramma, the testatrix's daughter. He was given item 2 after respondent 1's life interest, and item 3 outright. He did not appear in the proceedings.

Lakshmamma alias Achamma — the testatrix. She is alleged to have made the will on 22 August 1945 and died on 26 September 1945 at Mandya. She is not a party.

Procedural History

The judgment text has no numbered paragraphs, so no paragraph numbers are cited below.

1. The appellant sued in the Court of the Subordinate Judge, Mysore, as sole executor of the will of Lakshmamma, in O.S. Suit No. 44 of 1946-47. The will was said to be dated 22 August 1945 (Ex. A).
2. The trial court framed fifteen issues. It held that Annaji's will of 31 August 1901 was genuine and valid, and that survivorship (the surviving co-holder taking the whole) applied between the legatees under it. It held that survivorship did not apply to the properties given by Annaji's deed of gift (Ex. D).
3. The trial court held that Lakshmamma had a half share in all the properties and could make a will of that share. It held the will (Ex. A) genuine and valid to that extent, and held the suit maintainable and not barred by time.
4. By its judgment of 19 December 1947, the trial court declared Lakshmamma full owner of half the share in the scheduled properties. It declared that respondent 1 had only a life interest in the half share in items 1 and 2.
5. The trial court ordered respondent 1 to put the appellant in possession of Lakshmamma's half share in items 3, 4 and 5. It ordered her to pay Rs. 1,050 out of past mesne profits (profits for the period of wrongful possession), directed an inquiry into future mesne profits, and left the parties to bear their own costs.
6. Respondent 1 appealed to the High Court of Mysore (R.A. No. 155 of 1947-48). The appellant filed cross-objections (objections to the decree filed by the respondent in the other side's appeal).
7. The High Court held that the appellant had not proved that Lakshmamma was in a sound and disposing state of mind (able to understand what the will does) when she was alleged to have executed the will. It held that the will did not represent her intentions.
8. The High Court said it was unnecessary to consider the other issues. It still gave views on two. It held that the appellant had entirely failed to prove that the money for items 3, 4 and 5 came from Annaji's bequest or from income of the gifted properties. It was inclined to accept that Lakshmamma had transferred her interest in the gifted properties to her husband.
9. The High Court allowed respondent 1's appeal, rejected the cross-objections and dismissed the suit. It made no order as to costs. Its judgment is dated March 20; the year is printed unclearly in the source text.
10. The appellant obtained a certificate from the High Court that the decision under appeal was one of reversal and involved a claim to properties of not less than Rs. 20,000. The High Court admitted the appeal on that certificate, and the appeal came to the Supreme Court as Civil Appeal No. 18 of 1955.
11. The Supreme Court delivered its judgment on 13 November 1958.

Facts

1. Annaji Iyengar died in July 1903. He left an adopted son, the appellant, and two daughters: Gundamma alias Ranganayakamma (still alive) and Lakshmamma alias Achamma (the testatrix).
2. On 31 August 1901, Annaji made a will (Ex. B2(a)). It gave hypothecation bonds worth Rs. 10,320 to Lakshmamma and her husband Sadagopalachar, with the survivor taking the whole.
3. On 16 February 1902, Annaji executed a registered deed of gift (Ex. D) of items 1 and 2 jointly to Lakshmamma and Sadagopalachar.
4. Sadagopalachar died in December 1908. The couple had a son, Narayana Iyengar, and two daughters, Thirumalamma and Yadugiramma. Both daughters have died.
5. Narayana Iyengar died on 14 January 1944 without issue. He left his widow, respondent 1.
6. Thirumalamma left a son of weak intellect, who died during the litigation, and three daughters: Neelu, Jaya and Padmini. Yadugiramma left a son, Narasimha Iyengar (respondent 5), and a daughter, Lilly. Jaya was married to S.G. Kalbagal (Junior Kalbagal), a son of Yadugiramma's husband by his first wife.
7. The appellant claimed that Sadagopalachar used the Rs. 10,320 to buy immovable property, including items 3 and 4. He claimed that Lakshmamma became absolute owner by survivorship after her husband's death.
8. In the alternative, the appellant said that Narayana had sold properties worth more than his half share. On that footing the remaining properties were Lakshmamma's absolute property.
9. The properties were five items. Items 1 to 3 were agricultural lands at Hampapura village of 5, 4 and 4 (units as printed). Item 4 included 9 lands at Arjunahalli village (15 acres in all). Item 5 was a vacant site at Hampapura.
10. Respondent 1 denied that Annaji made a will in 1901. She said that Lakshmamma had transferred her interest in the gifted properties to her husband. She said Sadagopalachar bought the later properties with his own funds. She said Narayana became absolute owner after his father's death, so Lakshmamma could not make a will.
11. Respondent 1 also said the will was not genuine. She said Lakshmamma was not in a sound and disposing state of mind. She said the will was brought about by the appellant's schemes.
12. Lakshmamma was about 64 and usually lived at Hampapur. About a month before the will, she went to Mandya for a marriage in Junior Kalbagal's house. She fell ill and stayed on there.
13. The appellant said Lakshmamma had given him instructions for a will about a year earlier. When she fell ill, she pressed him to prepare the draft. He prepared a draft at Mysore the day before.
14. On 22 August 1945, the appellant went to Mandya by the morning train. The will was written about 11 or 11-30 a.m. by the scribe Chokkanna (P.W. 3), who wrote from the appellant's dictation using his draft.
15. The will was read to Lakshmamma, who lay in an adjoining room. She signed it in five places (Exs. A-1 to A-5). Krishnamurthy Rao (P.W. 1) and Narasimha Iyengar (P.W. 2) attested it.
16. Later that day, the Sub-Registrar came to Junior Kalbagal's house and registered the will. About the same time, Lakshmamma executed a power of attorney in favour of the appellant (Ex. EE). It was also attested and registered.
17. Lakshmamma was ill with paralysis of her left side. She could sit up in bed with difficulty and was so weak that she passed stools in bed. She died on 26 September 1945.
18. The will was long, and its English translation ran to eight printed pages. Only a small part contained dispositions. Most of it contained recitals arguing that Lakshmamma could dispose of all the properties.
19. The recitals said that the gifted properties and later purchases devolved on her by survivorship. They said Narayana had sold more than his share, and had given lands and ornaments to his sisters' children. They said she had given him Rs. 3,000 from her separate funds.
20. Under the will, respondent 1 received items 1 and 2 for life only. She had no right to mortgage, sell, gift or exchange them. After her death, item 1 went to respondents 2 to 4 and item 2 to respondent 5.
21. Item 3 went to respondent 5 and item 4 to respondents 2, 3 and 4. Nine acres of item 4 were charged with legacies and charities totalling Rs. 5,000.
22. The legacies were Rs. 500 each to four grandchildren: Padminiamma, Thirumalachar, Sudhakalyani and Nagendra. The charities were Rs. 1,000 for services at Hampapura, Rs. 500 each for services at Tirupati and Belur, and Rs. 1,000 for scholarships.
23. If respondents 2 to 4 did not pay within three years of her death, the appellant as executor was to sell the charged lands. The will said any earlier will was cancelled.

Issues Raised

1. What is the true legal position on the proof of wills, and on whose side does the onus (burden of leading evidence) lie?
2. Was the execution of this will surrounded by suspicious circumstances?
3. If so, did the appellant remove those suspicions by satisfactory evidence? He had to prove that Lakshmamma signed knowing the contents and was in a sound and disposing state of mind.
4. Did proof of the testatrix's signature raise a presumption that she knew the contents of the will?
5. Was the High Court justified in giving findings on other issues after holding the will not proved? These were the character of items 3, 4 and 5 and Lakshmamma's title.

Arguments Contended

For the appellant (S.K. Venkataranga Iyengar and K. Keshava Iyengar):

• Proof of the signature of Lakshmamma at five places, and of her sound and disposing state of mind, was enough. The Court must then presume the will was validly executed.
• Jarman and Williams are relied on as supporting that presumption. Jarman says a will that is rational on its face and appears duly executed is presumed valid in the absence of contrary evidence. Williams says that where the signature is proved, everything else is implied until the contrary is proved.
• The whole of the evidence was one way, and respondent 1 led no rebuttal evidence. The evidence of the appellant's witnesses was satisfactory, and the trial court's well-founded conclusion should not have been reversed.
• The appellant referred the Court to several judicial decisions. The Court reviewed some of the decisions cited before it.
• The appellant argued that Narayana had given lands and ornaments to his sisters' daughters, relying on documents under Ex. G. He said those gifts explained the small legacies to the grandchildren.

For respondent No. 1 (A.V. Viswanatha Sastri and K.R. Choudhry):

• The passages in Jarman and Williams refer to wills free from suspicion. They cannot be used where the execution of the will is surrounded by suspicious circumstances.
• The same books state another rule. Where the person who prepares the will or conducts its execution benefits under it, that circumstance excites the suspicion of the court and calls for vigilance.
• The bequests were made in the names of the appellant's sons because bequests in his own name would have been attached by his many creditors.
• Respondent 1 pleaded that the will was not genuine, that Lakshmamma was not in a sound and disposing state of mind, and that the appellant brought the will about.
• The respondent did not appear to support the High Court's findings on the two other issues.

Court's Reasoning

Opinion of Gajendragadkar, J. (delivering the judgment of the Court)

1. Noted: The suit was filed as sole executor to obtain a declaration that Lakshmamma owned the scheduled properties and could dispose of them by will. The appellant also asked for possession of items 3, 4 and 5, a declaration of a life interest in items 1 and 2, Rs. 2,106 as collected income, and mesne profits.
2. Noted: The main contention is against the High Court's finding that the will was not proved as the last will of Lakshmamma. The Court therefore first sets out the will's broad features and the evidence of execution.
3. Noted: The scribe (P.W. 3) said the will was written in Lakshmamma's presence at the appellant's dictation. The appellant himself said it was written in one room and read to her in the next. Junior Kalbagal (P.W. 4) supported the appellant on this point.
4. Noted: P.W. 1, a medical officer, had no clear memory of the events. He first said he signed once and then admitted twice. He could not say if the whole will was read. P.W. 2 said he was present when the will was written, but the scribe and the appellant said he was not.
5. Noted: The trial court put the onus on the appellant but said the proof needed is only what would satisfy a prudent man. It believed the attesting witnesses and the scribe, and held that proof of the signature raised a presumption that she knew the contents.
6. Noted: The High Court disbelieved the appellant's evidence on the instructions as improbable. It said the appellant's sons took substantial benefit and he took a leading part, so the onus was heavy on him. It found the dispositions unnatural, and was inclined to doubt Lakshmamma's state of mind.
7. Noted: Sections 67 and 68 of the Indian Evidence Act govern proof of a document. Under section 67, a signature must be proved to be in the person's handwriting. Sections 45 and 47 make the opinions of experts and of persons acquainted with the handwriting relevant. Section 68 bars use of an attested document as evidence until at least one attesting witness is called to prove its execution.
8. Noted: Sections 59 and 63 of the Indian Succession Act also apply. Section 59 lets every person of sound mind, who is not a minor, dispose of property by will. Section 63 requires the testator's signature or mark. It must show an intention to give effect to the writing as a will. It also requires attestation (signing by witnesses) by two or more witnesses.
9. Noted: The questions are whether the testator signed the will, understood its nature and effect, and signed knowing its contents. Decision of those questions determines whether the will is proved.
10. Held: A will has to be proved like any other document, except for the special attestation requirements of section 63. "it would be idle to expect proof with mathematical certainty." The test is the satisfaction of the prudent mind.
11. Noted: A will differs from other documents because it speaks from the testator's death. The testator cannot say whether it is his will. This brings an element of solemnity to the decision.
12. Held: The propounder must show by satisfactory evidence that the will was signed by the testator, and that the testator was in a sound and disposing state of mind. The propounder must also show that the testator understood the nature and effect of the dispositions and signed of his own free will.
13. Held: Where the evidence for the will is disinterested, satisfactory and sufficient on those points, the onus on the propounder is discharged. The court may then find in the propounder's favour.
14. Noted: The execution may be surrounded by suspicious circumstances. The signature may be shaky and doubtful, and the testator's mind may be very feeble. The dispositions may be unnatural, improbable or unfair, or may not be the result of the testator's free will.
15. Held: In such cases the court expects all legitimate suspicions to be completely removed. Suspicious circumstances make the initial onus very heavy, and courts are reluctant to treat the document as the last will unless it is discharged.
16. Held: If a caveat (an objection filed against the will) alleges undue influence, fraud or coercion, the caveators may have to prove those pleas. Even without such pleas, circumstances may raise doubt whether the testator acted of free will. It is then part of the initial onus to remove those doubts.
17. Held: If the propounder took a prominent part in executing a will that gives him substantial benefits, that is generally treated as a suspicious circumstance. He must remove it by clear and satisfactory evidence.
18. Noted: English decisions often speak of satisfying the judicial conscience. That is a heritage of the ecclesiastical courts. Objection to the word is technical and academic, if not pedantic. The test shows that the court decides a solemn question and must be fully satisfied that the will was validly executed.
19. Held: No hard and fast or inflexible rules can be laid down for appreciating evidence. Generally, the propounder must prove due and valid execution. If there are suspicious circumstances, he "must remove the said suspicions from the mind of the court by cogent and satisfactory evidence". The result depends on the facts of each case.
20. Noted: Lord Du Parcq said in Harmes v. Hinkson that the rules require "reasonable scepticism, not an obdurate persistence in disbelief". The judge is never required to close his mind to the truth. The judicial mind must be open though vigilant, cautious and circumspect.
21. Noted: It may be conceded that the five signatures are proved. It may also be taken as proved that respondent 1 failed to prove Lakshmamma was unconscious. Lakshmamma was an ailing woman of 64, and the appellant may argue that her sound and disposing state of mind was proved.
22. Noted: The appellant relied on Jarman and Williams. Jarman says the onus lies on the party propounding the will, who must satisfy the conscience of the court. He adds that a will rational on its face and duly executed is presumed valid in the absence of contrary evidence. Williams says that where the signature is proved, everything else is implied until the contrary is proved.
23. Noted: The respondent pointed to another rule in the same books. Where the person who prepares the instrument or conducts its execution is benefited, the court should be vigilant and zealous. It should not pronounce for the instrument unless the suspicion is removed.
24. Noted: The Court then asks whether the will is improbable, unnatural and unfair on the whole, as the High Court held. The preamble contains many argumentative recitals. It appears to meet by anticipation the objections to Lakshmamma's competence to make the will.
25. Noted: The preamble argues that the gifted properties devolved on her by survivorship, a plea not accepted even by the trial court. It argues that the later purchases were joint acquisitions, on which the two courts below differed. It argues that her son had lost his rights by alienating more than his share, and that she gave him money from her separate funds. Neither court accepted those pleas.
26. Held: Such elaborate recitals could not be the result of instructions given by the testatrix to the appellant. They sound artificial and unnatural, and some are untrue. The draftsman "tried to be overwise", which is a very serious infirmity in the appellant's case.
27. Noted: As an example, the will says Lakshmamma gave her son Rs. 3,000 from her separate funds. The appellant said in cross-examination that B.G. Ramakrishna Iyengar had sent the amount to the husband of respondent 1 in 1942 or so. So the recital is inaccurate.
28. Held: The manner in which the recitals were made is a suspicious circumstance that the appellant must explain satisfactorily.
29. Noted: The grandchildren got only Rs. 500 each. The appellant relied on Narayana's lifetime gifts of lands and ornaments to his sisters' daughters. The value of those lands was not clearly proved, nor the circumstances of the gifts.
30. Held: Even with those gifts, the testatrix would probably have made more substantial bequests to her grandchildren. Nothing suggested that her relations with them were not cordial and affectionate.
31. Noted: The appellant's sons received substantial benefits. The appellant came into Annaji's family by adoption long after Lakshmamma was married. The record does not show that she was on such affectionate terms with him that she would prefer his sons to her own grandchildren. The appellant was in straitened circumstances and owed nearly Rs. 30,000, but did not seek help from his adoptive sister.
32. Held: The bequests to the appellant's sons are also a suspicious circumstance which the appellant must clearly explain. The respondent's argument that the bequests were made in the sons' names to avoid the appellant's creditors cannot easily be rejected. The bequests are by no means insignificant.
33. Held: The appellant cannot successfully challenge the High Court's finding that some broad features of the will are improbable and unfair. He must remove the suspicions arising from them before the court accepts the will.
34. Held: The appellant admittedly took a very prominent part in bringing about the execution of the will. He prepared the draft and dictated it to the scribe. The only evidence on the instructions and the faithful preparation of the draft is his own. His part was very important, if not decisive.
35. Noted: The appellant argued that the evidence was all one way and respondent 1 led no rebuttal. He asked the Court to look at the evidence in light of several decisions, which the Court then reviews.
36. Noted: In Fulton v. Andrew, those who take a benefit under a will and helped to prepare or obtain it have the onus of showing that the transaction was proper. There is no unyielding rule that proof of reading over and execution shuts out further inquiry. Lord Cairns approved Baron Parke's two rules in Barry v. Butlin.
37. Noted: The first rule is that the onus probandi lies on the party propounding a will, who must satisfy the conscience of the court. The second is that where a party writes or prepares a will under which he takes a benefit, the court must be vigilant. These statements are now a classic.
38. Noted: In Fulton v. Andrew the jury found for the propounders on five issues and against them on the sixth, which concerned the residuary clause. The House of Lords discharged the rule for a new trial, reversed the order of the Court of Probate (the court that grants proof of a will) and remitted the matter for qualified probate.
39. Noted: In Vellasawmy Servai v. Sivaraman Servai, the Privy Council dealt with a will propounded by its chief beneficiary. He had taken a leading part in giving instructions and procuring execution. Probate should not be granted unless the evidence removes suspicion and clearly proves approval.
40. Noted: In Sarat Kumari Bibi v. Sakhi Chand, the Privy Council held that the principle is not confined to cases where the propounder takes part and benefits. The propounder must remove all clouds in any case of suspicious circumstances. Lindley L.J. said the same in Tyrrell v. Painton.
41. Noted: In Rash Mohini Dasi v. Umesh Chunder Biswas, the making of the will was the doing of the manager and trusted adviser. No previous or independent intention was shown. The application for probate was opposed on the ground of unsound mind and misunderstanding of the contents. The District Judge had granted probate and the High Court reversed it; the Privy Council confirmed the High Court.
42. Noted: Shama Charn Kundu v. Khettromoni Dasi was a case where the execution was not surrounded by suspicion. The propounder's adoption was proved, so his part and benefit were not suspicious. In Bai Gungabai v. Bhugwandas Valji, the onus on the solicitor was held discharged, though independent witnesses would have been prudent.
43. Noted: In Perera v. Perera, the instructions were very clear, the will was fair, and a person who gave clear instructions need only accept the draft as carrying them out. It is difficult to apply this decision without reference to its facts.
44. Noted: In Harmes v. Hinkson, the Privy Council refused to disturb the trial judge's finding of fact, which rested on his view of the witnesses. It rejected the undue influence allegation as a result of accepting the findings of fact. It illustrates respect for the trial court's findings of fact.
45. Noted: In the plaint, the appellant said Lakshmamma sent for him when she fell ill at Mandya and gave instructions then. In evidence, he said she gave instructions a year earlier and handed him the gift deed (Ex. D).
46. Held: The story of earlier instructions is an afterthought and cannot be accepted. On both occasions no one else was present, so the proof rests solely on his testimony. It is unlikely she would not have spoken to relatives such as Kalbagal, with whom she was staying.
47. Noted: The draft was not produced because it was said to have been destroyed. The appellant did not say the draft was read out fully to Lakshmamma before he dictated the will. Mandya had local lawyers, but he drafted at Mysore without legal help.
48. Held: Even the appellant's interested testimony does not show that he obtained her approval of the draft after reading it out clause by clause. The Court finds it difficult to believe that the elaborate recitals came from her instructions.
49. Held: The evidence of P.W. 1 is inconclusive. He could not say whether the whole will was read to her before he attested. P.W. 2's evidence carries little weight because it is inconsistent with the evidence of P.Ws. 3, 4 and 7.
50. Held: The scribe (P.W. 3) is a near relation of Kalbagal. He said that Lakshmamma would agree to whatever the appellant had written, which contradicts the appellant's case of previous instructions. His evidence does not prove that she understood the recitals and dispositions.
51. Held: The appellant's evidence (P.W. 7) is interested and not very satisfactory. Kalbagal (P.W. 4) is not wholly disinterested, because his undivided step-brother, respondent 5, received substantial benefits. His claim that he knew nothing of the will until the appellant asked for attesting witnesses is not natural or probable. His evidence does not show satisfactorily that the will was read out to her so that she could understand it.
52. Held: On this evidence, the Court is not prepared to hold that the High Court erred. The High Court concluded that it was not shown that she fully understood the contents. It also found it not shown that she signed intending the recitals and dispositions to be hers.
53. Held: The trial judge misdirected himself in law in thinking that proof of signature raised a presumption that the will was executed by her. Surendra Nath Chatterji v. Jahnavi Charan Mukherji held that on proof of the signature the testator is presumed to have known the provisions. B.B. Ghose J. added that this presumption can be rebutted by suspicious circumstances, which is the true legal position.
54. Noted: What circumstances are suspicious cannot be precisely defined or exhaustively listed. It is a question of fact in each case. The trial judge did not properly assess the suspicious circumstances in this case, which introduced a serious infirmity into his conclusion.
55. Noted: The appellant obtained a power of attorney from Lakshmamma on the same day. That raises the argument that he was keen to take possession and management of the properties before her death. The Sub-Registrar, who registered the will on the same day, was alive but not examined at trial.
56. Held: The High Court was justified in reversing the trial court's finding on the due and valid execution of the will.
57. Held: The High Court should not have recorded findings on two other issues. After holding the will not proved, it had itself said no other issue survived. Those were the character of items 3, 4 and 5 and the subsisting title of the testatrix.
58. Noted: The Court finds it difficult to see how two things could prove transfer or extinction of Lakshmamma's title. They are entries in the revenue record in Sadagopalachar's name, and long possession by him and later by Narayana. The Court mentions adverse possession in this connection. The High Court had not fully considered all the relevant evidence. Mr. Viswanatha Sastri did not seem inclined to support those findings.
59. Held: The Court does not decide those two issues on the merits. They are not decided in these proceedings and may have to be considered afresh between the parties if and when they arise.
60. Held: The appeal fails and is dismissed. There will be no order as to costs in this Court.

Authorities

• Harmes v. Hinkson ((1946) 50 C.W.N. 895 (P.C.)): Lord Du Parcq's statement that rules on a suspicious will require reasonable scepticism, not resolute incredulity. The decision rested on the finding of fact by the trial judge.
• Fulton v. Andrew ((1875) L.R. 7 H.L. 448): those who benefit under a will and helped to prepare it bear the onus of showing the righteousness of the transaction. Approved Baron Parke's two rules.
• Barry v. Butlin ([1838] 2 Moo. P.C. 480): Baron Parke's two rules, namely that the onus lies on the propounder and that a will prepared by a person who benefits excites the court's suspicion.
• Vellasawmy Servai v. Sivaraman Servai ((1929) L.R. 57 I.A. 96): probate should not be granted to the chief beneficiary who took a leading part, unless the evidence removes suspicion.
• Sarat Kumari Bibi v. Sakhi Chand ((1928) L.R. 56 I.A. 62): the duty to remove suspicion is not limited to a propounder who takes part and benefits.
• Tyrrell v. Painton ([1894] P. 151): Lindley L.J. held that the rule in Barry v. Butlin and Fulton v. Andrew extends to all cases where circumstances excite the court's suspicion.
• Brown v. Fisher ((1890) 63 L.T. 465): cited by Lindley L.J. with Barry v. Butlin and Fulton v. Andrew.
• Rash Mohini Dasi v. Umesh Chunder Biswas ((1898) L.R. 25 I.A. 109): will was the doing of the manager and adviser; probate refused.
• Shama Charn Kundu v. Khettromoni Dasi ((1899) I.L.R. 27 Cal. 522): the propounder was a proved adopted son, so his part and benefit were not suspicious. Distinguished.
• Bai Gungabai v. Bhugwandas Valji ((1905) I.L.R. 29 Bom. 530): the solicitor's onus was held discharged on the whole evidence. The principles in Fulton v. Andrew were not doubted.
• Perera v. Perera ([1901] A.C. 354): a testator who gave clear instructions to a solicitor and accepts the draft need only be able to think it carries out the instructions. Confined to its facts.
• Parker v. Felgate ([1883] 8 P.D. 171): Sir James Hannen's observations, followed in Perera v. Perera.
• Powell v. Streatham Manor Nursing Home ([1935] A.C. 243): respect due to a trial judge's view of the credibility of witnesses, referred to in Harmes v. Hinkson.
• Surendra Nath Chatterji v. Jahnavi Charan Mukherji ((1928) I.L.R. 56 Cal. 390): presumption from proof of signature is rebuttable by suspicious circumstances. Explained and approved on that point.
• Jarman on Wills (8th ed., vol. 1, p. 50) and Williams on Executors and Administrators (13th ed., vol. 1, pp. 92-93): relied on by both sides. Their passages on a rational, duly executed will apply where there is no suspicion.

Provisions Discussed

• Section 45, Indian Evidence Act, 1872: makes the opinions of experts relevant, including on handwriting.
• Section 47, Indian Evidence Act, 1872: makes the opinion of a person acquainted with a person's handwriting relevant.
• Section 67, Indian Evidence Act, 1872: where a document is alleged to be signed by a person, the signature must be proved to be in that person's handwriting.
• Section 68, Indian Evidence Act, 1872: an attested document cannot be used as evidence until at least one attesting witness has been called to prove its execution.
• Section 59, Indian Succession Act, 1925: every person of sound mind who is not a minor may dispose of property by will. Its illustrations show what a person of sound mind means.
• Section 63, Indian Succession Act, 1925: the testator must sign or affix a mark, or another person must sign in the testator's presence and at the testator's direction. The will must be attested by two or more witnesses.

Judgement

1. The appeal is dismissed.
2. There is no order as to costs in the Supreme Court.
3. The two other issues decided by the High Court are left undecided. They may be considered afresh between the parties if and when they arise.

Legal Principle / Ratio

A will is proved like any other document, apart from the special attestation rules of section 63 of the Indian Succession Act. The propounder must prove signature, sound and disposing state of mind, and knowledge of the contents. Where suspicious circumstances surround the execution, the propounder must remove them to the Court's satisfaction before the will is accepted.

Key holding: the propounder "must remove the said suspicions from the mind of the court by cogent and satisfactory evidence". Proof of the testator's signature alone does not give a conclusive presumption of knowledge of the contents.

Critical Analysis

Analysis based on the judgment text.

• The Court says suspicious circumstances cannot be precisely defined or exhaustively listed. It leaves each case to its facts, so the rule is a guide and not a fixed test.
• The Court accepts that no inflexible rules can be laid down. The decision therefore turns heavily on the Court's view of the oral evidence of the witnesses.
• The Court agrees with the High Court on the findings of fact. It also warns that a court should not close its mind to the truth in a suspicious case. The balance between vigilance and scepticism is left to judicial discretion.
• The Court does not decide the High Court's findings on the character of items 3, 4 and 5 and on Lakshmamma's subsisting title. The title question is left open for any later dispute.

Significance

• The case is the classic Indian statement on proof of wills. It sets out the burden on the propounder and the extra duty where suspicious circumstances exist.
• It fixes that the onus on the propounder is discharged by proof of signature and sound disposing mind where there is no suspicion.
• It holds that a propounder who takes a prominent part in executing a will that benefits him or his family must clear the suspicion by clear and satisfactory evidence.
• It confirms that the presumption of knowledge from the proof of signature can be rebutted by suspicious circumstances.

Exam-Important Points

• Rule: the propounder must prove due and valid execution. Where suspicious circumstances exist, the propounder must remove them by cogent and satisfactory evidence.
• Rule: a will is proved like any other document under sections 67 and 68 of the Evidence Act. The special requirement is attestation under section 63 of the Succession Act.
• Trap: proof of the testator's signature does not raise a conclusive presumption of knowledge of the contents. Suspicious circumstances can rebut it.
• Suspicious circumstances in this case: argumentative and untrue recitals, exclusion of the grandchildren, large bequests to the propounder's sons, and the propounder's prominent part in drafting.
• Where the will does not raise suspicion, proof of signature and sound disposing mind is enough to discharge the onus.
• Caveators who plead undue influence, fraud or coercion may have to prove those pleas. Even without such pleas, the propounder must remove doubts about free will.
• The judicial conscience test is not a technical rule. It only means the court must be fully satisfied that the will was validly executed.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited; the report is 1959 AIR 443; 1959 SCR Supl. (1) 426.