K. Sampath, J.@mdashA.S.581 of 1987 arises out of (S.O.P.) Succession O.P. No. 57 of 1983 on the file of the Subordinate Judges Court,
Nagercoil. Transfer A.S. No. 105 of 1992 arises out of O.S. No. 18 of 1984 on the file of the same Court. Respondents 6,8 and 9 in Succession
O.P. No. 57 of 1983 are the appellants in A.S. No. 581 of 1987. They are the appellants in the Transfer Appeal also. The petitioner and
respondents 2 to 4,7, and 10 to 15 in Succession O.P. No. 57 of 1983 are the respondents in A.S. No. 581 of 1987 and defendants 2 and 4 to
13 in O.S. No. l8 of l984. We will refer to the parties as per their ranks in the suit in O.S. No. 18 of 1984.
2. The suit was filed by one Thangaraj and Jeyaraj/the first appellant herein, pending suit, Thangaraj died on 29.1.1984; plaintiffs 3 and 4 were
impleaded as. LRs of the deceased Thangaraj, as per the order in I.A. No. 141/84 before the lower Court; the first defendant died on 20.8.1985;
her LRs were brought on record as additional defendants 8 to 13 as per the order dt.10.10.1985 before the lower Court; plaintiffs 1 and 2 and
defendants 1 to 5 are respectively the brothers and sisters of one Sunderraj; the seventh defendant/Dr. S.S. Rajan is a cousin of the said
Sunderraj; and the suit in O.S. No. 18 of 1984 was filed for partition and separate possession of certain items of properties.
3. The case, as set out in the plaint was as follows:
Plaintiffs 1 and 2 and defendants 1 to 5 are the brothers and sisters of one Sunderraj; their father being one Kochumani Nadar; Kochumani Nadar
died in the year 1949 and his widow in the year 1962; Sunderraj was their eldest son and he died unmarried on 20.6.1981 leaving behind plaintiffs
1 and 2 and defendants 1 to 5 to succeed to his properties set out in the schedule to the plaint, the plaintiff 1 and 2 were entitled to 2/7th while
defendants I to 5 together would be entitled to 5/7th; the sixth defendant one Sathyaseelan had got some encumbrance from defendants 1 to 5 in
the suit properties, therefore he had been impleaded as party on 20.2.1982, the request of plaintiffs 1 and 2 for effecting a partition was finally
made; and, defendants 1 to 5 not having agreed to the same, the suit came to be filed.
4. Defendants 1,2,4 and 6 filed a written statement containing the following averments:
The suit as framed was not maintainable; the building in the plaint item 3 alone was worth about Rs. 75,000; the total market value of the suit
properties was not less than Rs. 1,40,000/-; the plaintiffs had deliberately undervalued the suit to avoid payment of proper Court Fees; Sunderraj
left a registered Will, dt.20.5.1981; even though the plaintiffs were fully aware of that Will, they had chosen to file the suit; the plaintiffs could not
claim any right in the suit properties; the devolution was only under the Will dt.20.5.1981; under the said Will Sunderraj disposed of all his
properties in favour of defendants 1 to 5 and Dr. S.S. Rajan/seventh defendant, who had not been impleaded in that suit, he being the only son of
Sunderraj�s mothers sister; under the Will, the first defendant got E schedule property, the second defendant got D schedule property and the
fourth defendant got B schedule property, the plaint schedule item 5 belonged to the fourth defendant exclusively; the plaint schedule items 1 and 2
belonged to the second defendant absolutely and item 2 was sold away to the sixth defendant, who was in possession of that item; the northern half
of the plaint item 6 belonged exclusively to the first defendant, while the southern half belonged to Dr. S.S. Rajan, who got F schedule properties;
defendants 1, 2, 4 and 6 were accordingly in possession of several items as absolute owners, and plaintiffs 1 and 2 were well aware of the same;
the plaintiffs published a notice in the Tamil daily DINA MALAR dt. 10.1.1981 claiming that the children of the second plaintiff alone were entitled
to the properties of Sunderraj; there was a counter notice published on 11.10.1981 denying the false claim of the plaintiffs by relying on the Will dt.
20.5.1981; Sunderraj while alive rendered a good deal of help financially as also in various other respects to the plaintiffs; but they harassed
Sundarraj beyond limit by raising false and vexatious contentions in a partition suit filed by him and also by appropriating several movables
belonging to Sunderraj; and, because of that Sunderraj was greatly offended and evidently it was for the said reason he did not want to give any of
his properties to plaintiffs 1 and 2.
5. Defendants 3 and 5 filed a written statement practically setting out the same averments as in the written statement filed by the other sisters. The
statement further averred that pursuant to the Will, the legatees obtained title and possession over the properties and moneys bequeathed to them
and they were in enjoyment of the same and paying the land taxes in their names; no demand was made to defendants 1 to 5, as the plaintiffs had
full knowledge of the Will executed by Sunderraj; when, on the basis of the Will, defendants 1 to 5 applied to the various Banks in Nagercoil for
payment of the moneys deposited by Sundarraj in different accounts and bequeathed by him to his sisters under the various schedules in the Will,
the plaintiffs objected to the payment and also published a notice dt.5.10.1981 in the DINA MALAR daily dt. 10.10.1981 claiming that the
second plaintiffs children alone were entitled to the landed properties left behind by K. Sunderraj in Nalloor village as well as the moneys in these
Banks; there was a counter notice issued on 11.10.1981 by the second defendant in DINA MALAR dt. 13.10.1981 refuting the claim of the
plaintiffs over the properties and the moneys; and the plaintiffs were not entitled to any reliefs.
6. There was a replication statement filed by the plaintiffs. They also impleaded Dr. S.S. Rajan as the seventh defendant in the suit. They reiterated
the contents in the plaint and further stated that the Will was not a genuine one, but a piece of rank-forgery; late Sunderraj was suffering from acute
blood urea as well as blood pressure; he suffered giddiness often; he was physically and mentally very feeble after retirement from service till his
death; he was under the treatment of Dr. Vincent of Nagercoil, and then in the Holy Cross Hospital, Nagercoil till his death; he had no sound
disposing mind after his retirement;. He was very weak; while so, the alleged Will was brought into existence at the instance of the fifth defendant,
who was residing with late Sunderraj in collusion with Gangammal; the Will was not executed by late Sundar Raj out of his free Will and volition; at
the time of the Will he was not capable of understanding what he was doing; the husband of the second defendant by name Azariah, who was
working as Assistant in the Registration Department, had used his influence in the Department to bring into existence and cause the registration of
the alleged Will; the Will was unnatural; there was no reason for late Sunderraj to disinherit plaintiffs 1 and 2; and, the attestors of the will were the
henchmen of the husbands of defendants 3 and 4.
7. There was an additional written statement filed by D2 to D5 denying the allegations in the replication and stating that defendants 3 and 5 were
not in position to dominate the Will of their elder brother; he was a man of high principles and strong convictions; none could influence him or
dominate his Will. And, the suit was liable to be dismissed.
8. Defendants 6 to 13 adopted the pleadings raised by D.2 to D.5 in their written statement.
9. The Succession O.P. was filed by the third defendant Gangammal against her sisters, brothers, Dr. S.S. Rajan 7th defendant and the LRs of the
first defendant Rajammal. The Succession O,P. was for issuance of a Succession Certificate in her favour entitling her to collect the debts
mentioned in the petition from the respective banks. In the body of the petition the reference to the Will is made and her right to collect the amounts
in Banks is also emphasised on the basis of the Will.
10. A counter was filed by the first plaintiff, who was the fifth respondent in Succession O.P., disputing the genuineness of the Will and the
signature, and dismissal of the Succession O.P..
11. On the above pleadings, the lower court framed the following issues in O.S. No. l8 of l984:
1. Whether the plaintiffs are entitled to partition?
2. Whether the suit is maintainable?
3. Whether this court has jurisdiction to try the suit?
4. To what reliefs the plaintiffs are entitled?
5. Whether Sunderraj had given all his properties to defendants 1 to 5 and Dr. Rajan under his Will dt.20.5.1981.
12. It has already been noticed that pending suit the first plaintiff died and plaintiffs 3 and 4 were added as additional plaintiffs as they claimed the
properties of the first plaintiff on the basis of a will alleged to have been executed by him on 13.2.1983.
13. There were additional issues framed in the suit which were as follows:
1. Whether the Will dt.13.2.1983 relied on by the plaintiffs is true?
2. Whether Sunderraj was in a sound and disposing state of mind at the time he executed his Will?
3. Whether the plaintiffs are entitled to the share in the plaint 7th item?
4. Whether the plaintiffs claim to item 7 is barred by limitation?
5. Whether the Will dt.20.5.1981 had been brought about by fraud and undue influence?
6. Whether at the time the Will dt.20.5.81 was written, defendants 3 and 5 were in a position to dominate and control the testator?
7. Whether the court Fee paid by the plaintiffs is correct?
14. In the Succession O.P., the following points for consideration were raised:
1. Whether the Will relied on by the petitioner is true?
2. Whether Sunderraj executed the Will in a sound and disposing state of mind?
3. Whether the petitioner would be entitled to succession certificate as claimed by her?
15. There was a joint trial. On the side of the plaintiffs, the second plaintiff was examined as P.W.1, one Thangamani as P.W.2, and R.
Kumarasamy as P.W.3. Documents Exs.A.1 to A.15. were marked on their side. On the side of the defendants, the third defendant/Gangammal
examined herself as D.W.1., one Balraj as D.W.2, Rajarethinam as D.W.3, Dr. Vincent as D.W.4., Viyagappan as D.W.5, the sixth defendant
Sathyaseelan as D.W.6, Handwriting Expert Jeyadevi as D.W. 7, and Thanumalayaperumal as D.W. 8. Ex. B1 to B.49 were marked on their
side.
16. The lower court, on the basis of the pleadings and oral and documentary evidence held that the Will set up by defendants 1 to 5 was a true
document having been validly executed by the deceased Sunderraj, that the case of the plaintiffs that the Will had been brought about by fraud and
practice of undue influence had not been substantiated, that at the time he executed the will, the testator was in a sound and disposing state of
mind, that it had not been established that the fifth defendant was in a position to dominate over the testator, and that it had come into effect on the
death of the testator. The learned Subordinate Judge also held that the other Will set up by plaintiffs 2 to 4 had not been proved to have been
validly executed by the first plaintiff and that plaintiffs 2 to 4 did not derive any right under the said Will. By his judgment dt.21.1.1987 the learned
subordinate Judge dismissed the suit O.S. No. 18 of 1984 and decreed the Succession O.P. No. 57/1983.
17. It is as against that the present appeals have been filed.
18. Mr. T.R. Rajagopalan, learned Senior Counsel, appearing for the appellants made the following submissions:
The testator was seriously ill during the relevant time and he could not have had a sound and disposing state of mind. It is in evidence that
Sunderraj was hospitalised but the hospital records have not been produced. The cause of his death on 20.6.1981 is not given anywhere. The
Doctor, who treated him, had admitted to his not having treated him earlier, and in those circumstances the non-production of the hospital records
would be very material. A draft Will other than Ex.B.3 Draft of the Will is spoken to in evidence and the same has not been produced. It is further
in evidence that the testator had been living since 1979 with the fifth defendant and the fifth defendants husband had been helping him. One of the
attestors says that the fifth defendants husband/Dassian called him to attest the Will, and the said Dassian was authorised to receive the will from
the Registrars office. But, he had not been examined. The other sisters had no knowledge about the Will. The attestors and the scribe were
officially associated with the husband of the fifth defendant as teachers. It is also in evidence that the fifth defendants husband accompanied the
testator while executing the Will. The original Will and the draft were traced by the fifth defendant in the cupboard of the house, where the testator
lived, but, the fifth defendant had not entered the box. The age of the testator has been given as 38 years in 1981. When, admittedly, he retired in
1977, he should have been 54 years. As per Estate Duty valuation, the properties given to the fifth defendant are valued at Rs. 1,26,947/- whereas
compared to the same the other sisters have got lesser share in monetary value. It is not explained as to why the distinction had been made among
the sisters. It is also recited in the Will that there had been dispute among the brothers for over ten years, which is an exaggeration. There is also a
statement made in the Will that the movables had been removed by plaintiffs 1 and 2, and the same is not supported by any document. Exs. B.18
and B.19/ letters by Sunderraj, would show that even prior to his retirement in 1977 he was not keeping good health. The best person to speak
about his health was D.5 and she had not entered the witness box. With regard to execution, the attestors have not deposed properly and the
requirements of Sec.68 of the Evidence Act and Sec.63 of the Indian Succession Act have not been complied with.
19. The learned Senior Counsel relied on the following judgments in support of his various contentions:
1. N. Kamalam (dead) & anr. v Ayyasamy & another (2001 (5) Supreme 689)=2002-I-L.W. 460.
2. Govindan Chettiar Vs. Adilandam @ Seethalakshmi [1997-3-L.W.673];
3. Shanmugasundaram vs. Lakshmi [1995 (1) L.W. 379];
4. Venkatachala Iyengar Vs.. Thimmajamma [AIR 1959 SC 443]; and
5. Balakrishna Das Vs. Radha Devi [AIR 1989 Allahabad 133];
20. According to the learned Senior Counsel, evidence should be substantial and in the instant case evidence, as to due execution, is very much
wanting.
21. Let us first examine whether, as submitted by the learned Senior Counsel Mr. T.R. Rajagopalan, the Will is an unnatural one. That is to say that
the brothers have been left out of consideration and the sisters have been preferred.
In Sushila Devi v. Pandit Krishna Kumar Missir [AIR 1971 SC 2236] it has been held by the Supreme Court that
... non-bequest of property to children of testator does not make the Will invalid if the execution of the Will is satisfactorily proved.
The Supreme Court does not stop with that. It says further that-
....if the bequest made in a Will appears to be unnatural the Court has to scrutinise the evidence in support of the execution of the Will with a
greater degree of care than usual.
22. In my considered view, there are enough materials in the instant case to show that Sunderraj was totally disenchanted with his brothers. They
had caused him enough headache, disputed his rights to have partition of the joint family properties, set up a defence of acquiescence by him and
adverse possession against him. The suit for partition was filed in the year 1970 in O.S. No. 14 of 1970 be-fore the subordinate Judge,
Padmanabhapuram. The judgment in the suit was given on 15.9.1972 and the same has been marked as Ex.B.4 in the present suit. The defence in
the suit, as already noted, is to the effect that the plaintiff forfeited his rights over the properties by long course of conduct and acquiescence, that
he had been ousted from the family properties after the death of their father which had been accepted and acquiesced by him in the subsequent
dealings. That he lost his rights over the family properties by long adverse possession of defendants I and 2 (brothers of Sunderraj/plaintiffs 1 and 2
in the present suit), that they were in possession of the properties as absolute owners, and that the suit was barred by limitation. After a stiff
contest, the suit came to be decreed. A final decree also came to be passed on 3.2.1975 in I.A. No. 98 of 1974 in O.S. No. 14 of 1970.
Sunderrajs problem did not stop there. Even in March 1981, Sunderraj had to move before the Executive II Class Magistrate, Vilavancode, for an
order u/s 133 Cr.P.C. against the second plaintiff. He had filed a written statement before the Executive II Class Magistrate on 24.3.1981 which
has been marked as Ex.B.6. Para 3 of the written statement runs as follows: There is a private dispute between K. Sunderraj, Dowell Street,
Nagercoil and myself with respect to the survey Numbers in question and the proper forum to settle the dispute is the Civil Court.
Para 14 runs as follows:
At the time of enquiry I shall produce all the required document to substantiate my innocence and to reveal the real state of affairs as well as to
make it clear that it is a fabricated falsehood uttered by the said K. Sunderraj to mislead your Honour and thereby to wreak vengeance on me.
Enquiry notice is Ex.B.7 fixing the date of enquiry as 24.4.1981 at the Taluk office, Vilavancode. Both, Sunderraj and the second plaintiff, were
requested to attend the enquiry with relevant records. Thus, as late as April 1981, there was no love lost between the brothers. There was,
therefore, every reason for Sunderraj to disinherit his brothers.
23. Mr. Rajagopalan, learned Senior Counsel, submitted, in the course of his arguments, that the dispute among the sharers had been there for
over ten years, was an exaggeration. The foregoing would clearly show that it was not only an exaggeration, but, very much an understatement.
The dispute had gone beyond ten years and was very much alive in April, 1981. It can, therefore, be safely said that the Will is not an unnatural
one, the brothers having been disinherited for proper reasons and the sisters having been preferred for equally good reasons.
24. Mr. Rajagopalan strenuously contended that Sunderraj was terminally ill and the will attributed to him could not have been the conscious
outcome of a sound mind. The propounders had to prove without a trace of doubt that the Will had been executed validly by Sunderraj.
25. As regards the mental condition, the learned senior counsel submitted that the hospital records had not been produced and they had been
deliberately suppressed.
26. I do not agree. The Doctor, who treated Sunderraj, was examined as P.W.4 and the certificate issued by him has been marked as Ex.B.28.
Ex.B28 is dated 15.7.1986. It runs as follows:
This is to certify that Mr. Sunderraj, age 60, No. l15 A, Trowel St., Nagercoil was admitted at Holy Cross Hospital on 21.5.1981.
He was admitted with a diagnosis of Hypertension. On admission, patient was conscious, well oriented and his other mental functions were normal.
Further investigations revealed that his kidney functions also were impaired and blood urea was high.
Treatment was continued for Hypertension and Renal failure. He showed some improvement for about two weeks, then steadily deteriorated,
blood urea rose up to 120 mg. He became stuporous and died on 20.6.1981.
In his deposition, he has stood by the certificate. Though the learned senior counsel attempted to show that the hospital had admitted Sunderraj
without having a look at his previous medical history, I am unable to see any point in such a submission. The Doctor is a highly qualified Doctor.
He was a member of Cardiological Society of India. He returned from U.K. in 1976 and eversince he had been practising at Nagercoil. In cross-
examination, this is what he has stated:
I do not remember the time of admission From the nurses side I find that the time of admission is 1 P.M. I had not examined him before. He was
suffering from Chronic High Blood Pressure He might have been having blood pressure from 1967. It is possible that if a person suffers High B.P.
for such a long time he may be weak both physically and mentally. High B.P. for a long time affects the function of kidney. Uraemia is a rise of urea
in the blood. Urea brings convulsions ultimately resulting in coma if the urea is very high. If the B.P is high for a long period, the kidney might have
been affected. I do not remember whether E.C.G. was taken. His diastolic was 110. Systolic was 170. Diastolic remains family construct (fairly
constant). This high diastolic pressure might have been there few weeks prior to my examination. After admission I see the patient 3 or 4 times a
day First two weeks he was conscious: later his consciousness level was going down. No urologist examined him. He did not show me any
previous records.
He denied the suggestion that Sunderraj''s level of consciousness was very low even on the date of admission. Since his B.P. was higher, he
admitted him. He had further stated that he did not know the previous condition of the patient before he saw him on 21.5.81 at 1 P.M. In re-
examination he said that calm post was given on 30.5.1981 for the first time.
27. I do not find anything to discredit this witness. He has in no uncertain terms said that on the date Sunderraj was admitted, his consciousness
level was normal.
28. In Venkatachala Iyengar Vs.. Thimmajamma [AIR 1959 SC 443] relied on by the learned senior counsel it is stated as follows:
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 documents. Sections 67 and 68, 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. Sec.68 deals with the
proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of
proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Ss.59 and 63 of the Indian Succession Act are
also relevant. Sec.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. Section 63 requires that the testator shall sign or
affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so
made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested
by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the
testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the
dispositions in the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it
contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It
would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation
prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to
expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of
the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded
is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the court will start on the same
enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed
by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the
dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the will is disinterested,
satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be
justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the
essential facts just indicated.
There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances the alleged signature of the
testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the
testator may not remove the doubt created by the appearance of the signature; the condition of the testators mind may appear to be very feeble
and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions
made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the
said dispositions may not be the result of the testators free Will and mind. In such cases the Court would naturally expect that all legitimate
suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the
document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the
execution of the Will propounded, such pleas, may have to be proved by the caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free Will in executing the will, and in such circumstances, it would be a part of the initial onus
to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred in some cases the Wills propounded disclose another infirmity.
Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the
propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a
suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory
evidence. It is in connection with Wills that present such suspicious circumstances that decisions of English Courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made
by ecclesiastical Courts in England when they exercised jurisdiction with reference to Wills; but any objection to the use of the word conscience in
this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasises that, in deter* mining the question
as to whether an instrument produced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully
satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible
rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the
due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must
remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the
application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and
quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Pareq in Harmes v Hinkson, 50 Cal. W. N. 895 :
(AIR 1946 PC 156) Where a Will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief, they
do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his
mind to the truth. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must
always be open though vigilant, cautious and circumspect.
...
The next circumstance which calls for an explanation is the execution of the grandchildren of the testatrix from any substantial legacies under the
Will. It is true that a bequest of Rs. 500 each is given to them but that can hardly be regarded as fair or just to these children. It was, however,
urged by Mr. Iyengar before us that Narayana Iyengar had, during his lifetime, given lands to his sisters daughters. He had also spent considerable
amounts on the occasion of their marriages and had given them each valuable ornaments. In this connection, he referred us to certain documents
exhibited under Ex, G and attempted to show that the lands given to his sisters daughters were of the value of Rs. 1,500/- to Rs. 2,000/ each.
Apart from the fact that the value of these lands is not clearly proved nor are the circumstances under which they came to be gifted to the donees,
we do not think it would be possible to accept the argument that even with these gifts the testatrix would not have thought of making more
substantial bequests to her grandchildren. It is not suggested that the relations between the testatrix and these grandchildren were not cordial and
affectionate and so it would be reasonable to assume that they would have been the objects of her bounties in a more liberal measure in ordinary
circumstances.
29. This decision of the Supreme Court has been followed in a number of subsequent decisions:
See:
1. Rani Purnima Debi v Kumar Khagendra Narayan Deb [AIR 1962 SC 567];
2. Kalyan Singh v Chhoti [1990-1 SCC 266];
3. PPK Gopalan Nambiar v PPK Balakrishnan Nambiar [JT 1995 (5) SC 163]; and
4. N. Kamalam (dead) & another v Ayyasamy & another (2001 (5) Supreme 689).
30. In Seth Beni Chand v Kamla Kumar (1976 (4) SCC 554) it has been held by the Supreme Court that-
...It is well settled 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. By free and capable testator is generally meant that the testator at the
time when he made the Will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the Will
is discharged if the propounder leads evidence to show that the Will bears the signature or mark of the testator and that the Will is duly attested.
For proving attestation, the best evidence would naturally be of an attesting witness and indeed the Will cannot be used as evidence unless at least
one attesting witness, depending on availability, has been called for proving its execution as required by Section 68 of the Evidence Act....If the
circumstances surrounding the execution of the Will are shrouded in suspicion, it is the duty and the function of the propounder to remove that
suspicion by leading satisfactory evidence....The burden in testamentary cases is of a different order than in other cases in the sense that an
arresting witness must be called, wherever possible, to prove execution the propounder must remove the suspicion, if any, attaching to the
execution of the Will and if there be any doubt regarding the due execution he must satisfy the conscience of the court that the testator had a sound
and disposing state of mind and memory when he made the Will. Reasonable scepticism, not an obdurate persistence in disbelief nor a resolute and
impenetrable incredulity is demanded of the testamentary judge.
31. The plaintiffs contention is that the Will was brought about by undue influence and fraudulent means. Section 61 of the Indian Succession Act
runs as follows:
A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of
the testator, is void.
Relevant illustrations are (ii), (vi), (vii) and (viii). Illustration (ii) says,
A, by fraud and deception prevails upon the testator to bequeath a legacy to him. The bequest is void.-
Illustration (vi) says,
A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely
to purchase peace and in submission to B. The will is invalid.-
Illustration (vii) says,
A, being in such a state of health as to be capable of exercising his own judgment and volition, Buses urgent intercession and persuasion with him
to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and
volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.
Illustration (viii)says,
A, with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in
consequence of such attention and flattery, makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention
and flattery of A.-
32. In Naresh Charam Das Gupta v Paresh Charan Das Gupta (AIR 1955 SC 363) it has been held that-
Once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent,
the burden of proving that it was executed under undue influence is on the party who alleges it.-
33. Section 14 of the Indian Contract Act defines free consent as follows:
Consent is said to be free when it is not caused by?
(1) coercion, as defined in Section 15, or
(2) undue influence, as defined in Section 16. or
(3) fraud, as defined in Section 17, or
(4) misrepresentation, as defined in Section 18, or
(5) mistake, subject to the provisions of Section 20, 21 and 22.
Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud,
misrepresentation or mistake.
Coercion is defined as follows:
Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (XLV of 1860), or the unlawful detaining or
threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.
Explanation: It is immaterial whether the Indian Penal Code (XLV of I860) is or is not in (sic). in the place where the coercion is employed.
--Illustration omitted.
Section 16(1) of the Indian Contract Act defines undue influence as follows: ""A contract is said to be induced by undue influence where the
relations subsisting between parties are such that one of the parties is in a position to dominate the Will of the other and uses that position to obtain
an unfair advantage over the-other. 16(2): In particular and without prejudice to the generality of the foregoing principle, a person deemed to be in
a position to dominate the Will of another?
(a) Where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other: or
(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or
bodily distress.
16 (3) Where a person who is in a position to dominate the Will of another, enters into a contract with him, and the transaction appears, on the
face of it or on the evidence adduced, to be unconscionable, the burden of proving that, such contract was not induced by undue influence shall lie
upon the person in a position to dominate the Will of the other.
Illustrations omitted,
Section 17 of the Contract Act defines fraud as follows:
Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent with intent to
deceive another party thereto or his agent, or to induce him to enter into the contract-
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other not fitted to deceive;
(5) any such not or omission as the law specially declares to be fraudulent.
Explanation: Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the
case are such that, regard being had to them it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to
speech. Illustrations omitted.
34. In Gomtibai v Kanchhedilal (AIR 1949 PC 272) = 62 L.W. 700 the Privy Council referred to the statement of law in Barry v Butlin (2 Moo.
P.C. 480). It reads as follows:
The undue influence and the importunity which if they are to defeat a will must be of the nature of fraud or duress:
The Privy Council also referred to the observation in Craig v Lamoureux [AIR 1919 PC 132] that the burden of proving undue influence is not
discharged by merely establishing.
that a person has the power unduly to overbear the Will of the testator. It must be shown that in the particular case the power was exercised and
that it was by means of the exercise of that power that the Will was obtained.-
35. With particular reference to Section 61 of the Indian Succession Act in Naresh Charan Das Gupta v Presh Charan Das Gupta [AIR 1955 SC
363], already referred to, it has been held as follows:
It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as undue it is open to a person to
plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there
is no element of fraud or coercion.
It has been often observed that undue-influence may in the last analysis be brought under one or the other or these two categories? the will cannot
be attacked on the ground of undue influence. The law was thus stated by Lord Penzance in Hall v Hall (1868-I P&D 481 at page 482):
But all influence are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for
future destitution, or the like,? these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character,
whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under
which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for
the sake of peace and quiet, or of escaping from distress of mind or social discomfort, ? these if carried to a degree in which the free play of the
testators judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a
testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one else?
36. The learned Senior Counsel took me through the oral evidence on the side of defendants 1 to 5 and submitted that the onus on the defendants
as to a sound and disposing state of mind of the deceased had not been properly proved. The learned Senior Counsel also submitted that there
were very many suspicious circumstances in the coming into existence of the Will/Ex. B.1. According to him, the fifth defendants husband/Dassian
had taken a very active role in bringing about the Will. His wife also got the lions share in the bequest and an analysis of the estate duty
proceedings would show that there were wide disparities in the matter of bequest to the various legatees.
37. In my view, this point cannot be pressed into service by the appellants for the simple reason that only the other legatees had to object to such
bequest, but, they had all joined together and supported the valid execution of the Will/Ex.B.1. We have already extracted the relevant passages
from the judgment of the Supreme Court in Venkatachala Iyengar v Thimmajamma [AIR 1959 SC 443]. There is a significant sentence in that
decision which is to the following effect:
It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such
pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting
of his own free Will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the
matter.
38. Let us now examine the oral evidence on the side of the defendants with regard to the execution of the will/Ex. B.1. the third defendant who is
the petitioner in the Succession O.P. was examined as D.W. 1.
She identified the signature of Sunderraj in Ex. B.1; Ex. B.2 Death Certificate was marked through her; she produced Ex. B. 3/Draft, written by
Sunderraj himself, of the Will; the Draft / Ex. B. 3 was in the shelf of Sunderraj; there was no love lost between Sunderraj and plaintiffs 1 and 2;
Sunderraj asked for his share of the properties from them, since; Sunderraj was a bachelor, they refused to give him his share; Sunderraj filed a
case and took possession of his share; there was enmity between Sunderraj on the one side and plaintiffs 1 and 2 on the other; Ex. B, 4 is the
judgment and Ex. B. 5 is the copy of the final decree; the second plaintiff put up a compound wall including 3/4 cent and the tamarind tree thereon
belonging to Sunderraj, and prevented the defendants from taking possession of the property, it was item 1 in the plaint; the second plaintiff lived
next to that; Sunderraj filed an application for removal of obstruction; Ex. B. 6 is the counter petition filed by the second plaintiff; Ex. B.7 is the
notice to Sunderraj from Taluk Office, Vila van-code. She did not know as to what happened to that proceedings; Sunderraj was admitted in the
hospital on 21.5.1981; he had gone there for check up of his Blood Pressure; he died on 20.6.1981 in the hospital the sisters visited him in the
hospital brothers did not he was working as P.A. to Collector in Tirunelveli District in 1976; at that time her aunts son Dr. Rajan (D.7) was taking
care of him; Sunderraj was in his hospital from June 1979, the fifth defendant was staying with Sunderraj; she had two female children; there was
also a special term deposit in the joint account of Sunderraj and the fifth defendant Sunderraj had a cooking gas connection also; the relevant
document being Ex. B. 9.; Ex. B. 10 is the cash bill regarding gas connection Exs. B. 11 to B. 14 are Sunderraj''s office correspondence
containing his signatures; they were in the shelf of Sunderraj house Exs. 15 to 17 are three Office Petitions written by Sunderraj on his own
handwriting; these three also in the file of Sunderraj; Exs. B. 18 and B. 19 are the letters written by Sunderraj to D.W. l''s husband; as per the
terms contained in the Will, the sisters were enjoying the properties of Sunderraj; the plaintiffs had no right in the cash belonging to Sunderraj only
the sisters and the 7th defendant were the heirs of Sunderraj; Ex. B 20 is the decree in O.S. No. 63 of 1981 filed by Sunderraj; the first plaintiff
died in a rented house in Sargunam Street; he was well disposed towards the sisters he used to take food in D.W.1s house in the morning and in
the afternoon D.W.1 sent food to him; he was affectionate towards her children on the date Sunderraj died the first plaintiff had come to D.W. 1s
house and had attested her sons certificates on 8.5.1981 also he had attested the certificates/Exs.B.2l and 22; on 24.11.1982 he had attested
another certificate/Ex. B. 23; if really Thangaraj had executed a Will he would have given something to her and her children the suit had to be
dismissed and the Succession Certificate had to be issued; Ex. B. 24 is the Estate Duty Clearance Certificate and Ex. B. 25 is true copy of the
account in State Bank of Travancore in the name of Sunderraj; Ex.B.26 being the certificate for the money in Indian Bank.
39. In cross-examination she had stated that she and her sisters were all friendly to one another; since his retirement on 31.8.1977. Sunderraj was
living in plaint schedule item 3; the fifth defendant had been living with Sunderraj from 1979; she denied that Sunderraj had complained of acute
Blood Pressure from 1967 and that he had blood urea kidney problem; he was keeping hale and healthy while in service; it was not correct to say
that because he was seriously ill. the fifth defendant was living with him D.W.I used to go to see Sunderraj once or twice a month Sunderraj was
not very friendly towards his brothers; she did not see him while signing the Will; she knew about the Will only when D. 5 told her after the burial;
at the time the Will was taken out, D.W.5, her sisters and some others were present the Will was in the cupboard of the front side room of
Sunderraj house and there were other records also in that shelf; it was not correct to say that he had chronic hypertension; D.5 was a teacher and
her husband was a headmaster; she did not know as to where he was at the time the Will was executed; her husband was in the Education
Department and at the time the Will was executed, he was working in Tiruthani area; he had worked previously in Nagercoil; it was false to say
that at the time when the Will was prepared her husband had taken leave and was in Nagercoil; the fourth defendants son-in-law was a teacher
working in a Management School; the second defendants husband was working in Sub Registrar Office, Kuzhithurai; both the attestors to the Will
were teachers; she had not talked to them; she had not moved with them prior to 21.5.1981; she had not gone there to see him while he was
unwell; she had also not given monetary help as he did not need any such help; he was not bedridden in 1976; in 1976 he was staying with D.7
Sunderraj took treatment for Blood Pressure in 1976 he did not tell her anything about the Will prior to its execution she did not know as to the
circumstances under which the Will was written; she had seen his specimen signature; there was difference in the signature of Sunderraj in A. 1 and
his signature in B-1; she knew about Sunderraj being admitted in Holy Cross Hospital on the same night; she had gone and visited him ten days
prior to his admission in the hospital; he was feeling well while in hospital when she went and saw him, he was quite conscious she did not stay with
him continuously till his death plaintiffs 1 and 2 did not visit the hospital. The first plaintiff and Sunderraj were inimical to each other the burial of
Sunderraj took place on 21.6.1981 in the morning at 7o clock funeral rites were not performed there; it was false to say that on 20.6.1981
Sunderraj was not in a sound state of health; it was also false to say that he was not in a proper physical and mental condition; it was false to say
that D.W.I and the fifth defendant were in a position to dominate Sunderraj and using that Ex.B.1 was manufactured; it was false to say that the
witnesses to Ex. B.1 were their friends; because Ex. B.3 had been written in his own hand she said that Ex. B.3 was the manuscript copy of the
Will; she did not know as to who had written in page 9; in Ex. B. 3 the first three pages had been written by Sunderraj; pages 4 to 16 were not
written by Sunderraj; she could not say as to who wrote those pages; the draft Ex. B.3 was found in Sunderraj�s shelf; Ex. B. 3/Copy was got
one month after Ex. B.1.; the lawyer had told them that there would be a draft and asked them to get it; they searched for it and gave the draft to
the lawyer; her husband traced the draft; it was false to say that the draft had not been prepared by Sunderraj and that it had been prepared for the
purpose of the case; she personally knew about, Jeyaraj preventing Sunderraj from enjoying his tamarind tree by putting up a compound; the
compound had been put up by the Railway; Sunderraj wanted the compound wall to be changed and he applied for the same; Exs. B. 11 to B. 14
were not prepared for the case; it was false to say that Exs. B.15 to B.17 did not contain Sunderraj�s signature; after the first plaintiff came to
know about Sunderraj�s Will; he became inimical towards the sisters; he joined hands with the second plaintiff and was conducting the case; on
10.10.1981, plaintiffs 1 and 2 had published a notice in the news paper; she did not know whether the first plaintiff worked in Nagercoil till
14.2.1983; he was shifted from Nagercoil to Erode; it was false to say that he was staying with the second plaintiff; because they did not send a
word about the first plaintiffs death, the sisters did not go; she did not know as to who performed the funeral rites; and it was false to say that the
first plaintiff on 13.2.1983 had executed a Will in favour of the second plaintiff and his children in a sound and disposing state of mind.
40. D. W. 2 is a retired Sub-Registrar. He is the scribe of Ex. B.I. His evidence was to the following effect:
Since his retirement in 1972, he had been doing the job of document writer; he had his Office just 100 ft. away from the Sub-Registrars Office at
Nagercoil; he knew Sunderraj and he had prepared a Will for him and Ex. B. 1 was that; it was typed in his office he had signed in page 7 as
having prepared the same; Sunderraj had sent a draft written by hand to him; on the basis of that draft, the witness prepared another draft typed it
out and sent it to Sunderraj, who perused it, approved it and sent it back; thereafter he prepared the original; Ex.B.3 was the manuscript sent by
Sunderraj; on the date of registration, Sunderraj and some others came to his office; he gave the original and the draft to Sunderraj he verified and
read through and thereafter signed it; after him, the witnesses signed the document; thereafter D.W.2 signed it; all of them signed in his office; the
scribe and the attestors saw Sunderraj sign the Will; in his presence the attestors put their signature; he wrote the names of the witnesses in the
filing sheet; even in that, he obtained the signature of Sunderraj; and, Sunderraj and the witnesses collected the filing set as well as the original and
went to the Sub-Registrars Office.
41. In cross-examination, the witness deposed as follows:
He knew Sunderraj from 1970 even while he was in service, Sunderraj had come to him for completing some document; he had introduced himself
then; thereafter he had seen him several times; he did not remember as to whether Sunderraj obtained any other document prepared by the
witness; he could not recollect all the persons who came to him when he was in service as Sub Registrar; a retired Tahsildar brought
Sunderraj�s manuscript copy to him; only that retired Tahsildar Viyagappan told that it was Sunderraj�s manuscript copy; the witness did not
know Sunderraj�s signature; in the manuscript another person also had written; Viyagappan gave the copy two or three days prior to the
registration of the Will; he did not correct Ex. B.3; he did not know any of the defendants; he did not remember the date of which Sunderraj came
to his office; he came on the date of registration; he did not know by which vehicle he came; two or three other persons came with him; he did not
remember who they were; the draft prepared by him was sent by him through Viyagappan; he gave it a day prior to registration; the draft prepared
by him was in his custody and later on it was destroyed; the witnesses came with him, but he could not point out those witnesses; when Sunderraj
signed, it would have been 2.0 or 2.30 in the afternoon; when he came, the witness had prepared the original; after he came, he read it and then
signed it; he signed thirty minutes after he came to his office; at the time when he was asked to prepare the Will, no original document was given to
him; when he came, he was happily wishing; no female came with him; he could not say as to how many signature he put; he asked Sunderraj to
put his signature; and, the witness denied the suggestion that he did not see Sunderraj putting signature.
42. D.W.3/ Rajarethinam is one of the attestors. At the time he gave evidence he was working as High School Headmaster in Iraviputhoor; he is
an M.A. B.T.; he knew Sunderraj from 1952; both of them having stayed in the same lodge in Trivandrum; the witness knew about his executing a
Will and registering the same; Sunderraj told the witness about ten days prior to the registration that he should join as attestor; Sunderraj sent for
the witness on the date of registration; the witness was both attestor and identifying witness; he was the second attestor; he saw Sunderraj sign the
document in the office of the document writer; when he signed, Sunderraj saw him; the other attestor was one Francis, High school Headmaster;
when he signed, Sunderraj and this witness saw and Francis saw when Sunderraj signed; Ex. B.1 was that Will; Francis also signed as identifying
witness before the Sub-Registrar; in 1981, the witness was living about one furlong away from where Sunderraj was living; Francis was living near
Scot High School; six days after registration of the document, the witness saw Sunderraj in the hospital; he said that he came for medical check-up
and the Doctor asked him to stay in the hospital; it was vacation time; though he was employed as Headmaster in Tanjore district, he was there
during the relevant period; and, Sunderraj had authorised his brother-in-law Dassian (D.W.5s husband) to collect the registered Will.
43. In cross-examination, he gave details of the place where he stayed in Trivandrum along with Sunderraj. At that time Sunderraj was working as
Revenue Clerk, the witness was a college student; the witness could not remember the exact date on which he was asked to stand as an attestor;
about ten days prior to the date of registration he had told him; at the time he was Headmaster at Tamaram Kottam, Thanjavur; it was vacation
time so he was there; his family was in Nagercoil; in 1982, he came to Thanjavur; on the date of registration, the witness went to the house of
Sunderraj at 1.30 p.m.; on the previous day, Sunderraj�s brother-in-law had asked him to come to Sunderraj�s house; there was no
relationship between the witness and Dassian; the witness, Dassian and Sunderraj went to the Office of the document writer; Francis came in his
vehicle; as he was headmaster, the witness knew him; Dassian at the time of deposing, was Headmaster; the witness did not know D.W. 3s
husband nor D.W. 4s husband; Sunderraj signed on all pages; but the witness could not say how many signatures he put; before signing Sunderraj
read through the document; the witness did not go through the document; Sunderraj put his name and then signed the witness could not recollect as
to in how many places he signed; there was no difference between his signature before the Sub Registrar and the signature elsewhere; both the
signature were put by him; when the witness went there, Viyagappan was not there; Sunderraj hand was not shaky; the witness did not enquire in
the hospital as to what illness Sunderraj was suffering from; he had told the witness, he came for a check up; Sunderraj�s condition in the
hospital; was not so serious as not to be able to speak; the witness could not say as to when Sunderraj returned from the hospital the witness had
married Dr. Vincents sister; Dr. Vincent was a visiting Surgeon in Holy Cross Hospital; the witness did not know which Doctor treated him; he did
not meet Dr. Vincent and enquire about Sunderraj�s illness; the witness could not remember as to the room occupied by Sunderraj in the
hospital; he did not see whether there was treatment chart in the hospital either; he did not know that Sunderraj had Blood Pressure, High Urea
and passing of blood in urine; in the office of the scribe, Sunderraj gave the original and the typed copy for verification; it was not correct to say
that Sunderraj was not in a position to sign on that day; it was equally false to say that the signature in the Will was not his and by practice of
impersonation, the Will had been registered and Francis was working as Headmaster in some school in Kanyakumari District.
44. So far as D.W. 4 is concerned, he is the Doctor, who treated Sunderraj. His evidence as also Ex. B. 28/Certificate issued by him have already
been referred to and discussed.
45. D.W. 5 is one Viyagappan, who retired as Deputy Tahsildar of Nagercoil in 1974. His evidence was to the following effect:
He had known Sunderraj from 1945: In 1981 April end, Sunderraj asked him to help him in drafting a Will; he was living one furlong away from
Sunderraj''s house; I went there to assist Sunderraj; both of them went to Agatheeswaram Village Office, Kanyakumari Village Office. Nallore
Village Office for getting resurvey numbers and boundaries with regard to Sunderraj�s properties; in Ex. B. 3 he wrote up to three pages and
rest of the document was written by this witness; at the time Sunderraj drafted Ex. B. 3 he told the witness that his properties had to go to his
sisters and his aunts son and so far as his brothers were concerned, they had been giving him a lot of trouble and therefore he did not want to give
any property to them; after drafting Ex. B.3 the witness showed the document to D.W.2.; they also said that they wanted a typed draft on the date
of registration; the witness collected the draft and he gave both Ex. B.3 and the typed draft to Sunderraj; he kept the manuscript copy/Ex. B. 3
with him and returned the typed copy to the witness and asked him to arrange for registration the next day; as instructed, the witness gave the
typed draft to D.W.2 and asked him to prepare the original Will and arrange for registration the next day; the witness did not go for registration; he
saw Sunderraj three days thereafter in Holy Cross Hospital where he was admitted on account of his illness and, Sunderraj told him that the Will
had been registered.
46. In cross-examination he denied that there was any complaint against him when he was in service as B.D.O., and that he was therefore
reverted; that he opted to return to the parent department; he further said he had not conducted any case either as plaintiff or as defendant in
Kuzhithurai; though he had deposed as witness in 3 or 4 cases, he had been plaintiff in a case before the District Munsif, Nagercoil; when he was
working in the Secretariat, in 1945, Sunderraj was in the Revenue Department; he knew him even from then; thereafter they were working in the
same Department in Kanyakumari district; they were good friends; he could not remember the exact date on which Sunderraj met him and told
about his plan to write a Will; it was in the last week of April; he did not talk about the contents of the Will; only at the time the Will was drafted
they talked about it; it was his recollection that Sunderraj had documents pertaining to his properties; the witness added, tax receipt and patta
books were with Sunderraj; Sunderraj requested him to assist him till the Will was completed; at that time Sunderraj was staying in the house of D.
5.; the witness had seen D. 5s husband in that house; D. 5 had two female children, though he was not sure about it; he could not recollect as to
the date on which Sunderraj and himself together went to Agastheeswaram, Nagercoil and other places; they might have gone in the first or second
week of May; the witness had not written any Will for anybody else before this Will; the witness did not see Sunderraj writing the first three pages;
after he wrote, he gave the pages to him; there was no particular reason why Sunderraj had not written the rest of the pages; it was not correct to
say that Sunderraj was affected with mental illness; the witness did not know as to when Sunderraj wrote the first three pages; at the time the
witness saw, Sunderraj was in good health and atmosphere to write a Will; the rest of the pages were written over two weeks; the witness could
not say as to how many pages were written on every day; Sunderraj on his own, said that he did not want to give anything to his brothers; rest of
the Will was written in the presence of Sunderraj; the witness read it out to him; it was his recollection that on May 17, he gave the draft Ex. B. 3
to D.W. 2; the witness did not know whether Sunderraj met the scribe on a day prior to registration; the witness did not give any document to the
scribe; as the witness had to go to attend a marriage in Trivandrum he did not go for registration; he also did not see the registered Will thereafter;
at the time he went to the hospital he was normal and freely talking; the witness denied the suggestion that Ex. B. 3 did not contain Sunderraj�s
handwriting and that the witness along with the defendants and their respective husbands had concocted the Will; the witness also had not come to
Court for the case prior to his coming to give evidence and, he denied that he was giving false evidence.
47. We need not concern ourselves with the oral evidence of D.W. 6, who is the sixth defendant He had purchased suit item 2 from D. 2 under
Ex. B. 29.
48. D.W. 7 is the finger print expert. She was examined in connection with the Will/Ex.A3. attributed to the first plaintiff.
49. D.W.8 is the husband of the third defendant. He had also spoken to the death of the first plaintiff and as to what happened thereafter. Let us
not concern ourselves with the details now.
50. Mr. T.R. Rajagopalan, learned Senior Counsel, relied on the judgment of S.S. Subramani, J. reported in Govindan Chettiar v Akilandam &
Seethalakshmi [1997-3-L.W. 673] and contended that as in that case, the legal requirement that an attesting witness had to prove the signature
which he had attested, in the instant case, was not satisfied. In that case what had happened was, the legatee had taken an active part in the
execution of the Will, the stamp paper was in the name of the propounder, the signature of the testator appeared different at every page, and, the
mental capacity of the testator also was in doubt. The circumstances showed that formalities were perfunctory, the attestors were not speaking
about the affixing of the signature by the testator, there was no identification of the signatures of testator and attestors, and in those circumstances,
the learned Judge held that the Will had not been properly proved. In that case the learned Judge was critical about the circumstances under which
the Will was executed and registered. The learned Judge did not confine himself to what the attestors had spoken about, but, looked into the
surrounding circumstances in coming to the conclusion that whether the witnesses had spoken regarding the true version. The attesting witnesses
had merely given a general statement about the procedure of attestation. As already noted, the signatures of the testator and the attestors had not
been identified. Every attestor had not proved the signature which he had attested. Evidence was lacking in that case.
51. In my considered view, the decision will not apply to the facts of the present case. where the attestor had spoken to the testator affixing his
signature to the Will / Ex. B. 1 and while the testator affixed his signature, he and the other attestor had seen him so affixing. The testator had seen
the two attestors putting their signature as witnesses and each attestor had seen, the other putting his signature to the Will. As pointed out by Mr.
Sadhasivam, learned counsel for defendants 1 to 5, in that case, though the attestor was cross examined at length, the Will had not been shown to
him nor did he identify the signature of the testator and himself. Same was the case with the other attestor. After referring to the fact that the Will
was not shown to the attestor/D.W.2 in that case and also observing that he did not identify the signature of the testator and himself, the learned
Judge in para 17 observed as follows;
This is generally the oral evidence, to prove the execution of Ex. B. 5. Under normal circumstances I would have said that on the basis of this
evidence, the execution has been proved. But certain circumstances have been brought to the notice of Court which require further explanation
from the appellant in this case.
Thereafter, the learned Judge went on to set out the further facts which would discredit the proper execution of the Will.
52. Mr. Sathasivam, learned counsel for defendants 1 to 5, has also relied on another judgment of S.S. Subramani, J. reported in Suguna Bai v
Muniammal & Dhanalakshmi [1996 (II) MLJR 596]. That was also a similar case where the learned Judge did not find that the Will in that case
had been shown to the attestor and the signatures of the various attestors or the testator were identified by him. The showing and non showing,
made the difference in this second case decided by S.S. Subramani, J.
53. Mr. T.R. Rajagopalan, learned Senior Counsel for the appellants, relied on the judgment of the Allahabad High Court in Balkrishna Das
Agarwal v Radha Devi [AIR 1989 Allahabad 133] wherein a Division Bench of that Court has observed as follows:
The mode of proving a Will does not ordinarily differ from that of proof of any other document except as to the special requirement of attestation
prescribed by S. 63 of the Succession Act. The onus of Proof rests squarely on the person propounding a will and in the absence of any suspicious
circumstances surrounding its execution, the proof of testamentary capacity and testators signatures as required by law would normally suffice in
discharging the onus. Where, however, suspicious circumstances are found to exist, the propounder of the Will must explain them and dispel all the
suspicions to the satisfaction of the Court before it is accepted as genuine. This would be so even in those cases where such a plea has not been
raised and on proved circumstances had given rise to doubt. In such cases also, it is for the propounder to satisfy the conscience of the Court.
These suspicious circumstances may be as to the genuineness of the testators signatures, his mental condition, the nature of disposition being
unnatural and improbable or unfair in the light of the relevant circumstances or may consist of such other indications inherent in the Will as would
show that the testators mind was not free. In any of such cases, the propounder must remove all legitimate suspicions to the entire satisfaction of
the Court. These rules are based on sound judicial principles and on ground of public policy as the Will often, if not always, comes under challenge
only when the testator has already departed from this world and cannot, therefore, assist the Court enquiring into its genuineness in any manner.
54. So far as the proposition of law, as laid down by the Allahabad High Court is concerned, there can be no second opinion about it. The
principle is as ancient as the hills. Once it is established that the Will had been proved to have been signed by the testator and attested by witnesses
it is for the plaintiff to show that there were suspicious circumstances as to the genuineness of the testators signature and his mental condition.
55. As regards the unnatural, improbable or unfair nature of the disposition complained of, we have already noticed that there was absolutely
nothing unnatural, improbable or unfair in the disposition having regard to the extremely strained relationship between the testator and his brothers
which had started in 1970 and continued unabated till April 1981.
56. As far as records in the present case are concerned, they would show that the testator had every reason to disinherit his brothers when he had
given vent to his estrangement with his brothers in the draft prepared by him of which he had himself written with his own hands the first three
pages and in the second page itself he was stated as follows:
The two brothers, Thankaraj and Jeyaraj, eventhough I had spent a lot of money from my earnings for their welfare, due to unnatural desire for
wealth, contested a partition suit for about ten years in different civil Courts raising false and baseless contentions, which rendered me a chronic
hypertension patient from the years 1967 itself. Further they indulged in committing theft of my valuables all along.
57. The learned Senior Counsel submitted that there was no material to show that the brothers, namely, plaintiffs 1 and 2 indulged in committing
theft of Sunderrajs valuables and that the recitals had not been substantiated by any material evidence. The fact remains that Sunderraj himself had
written these sentences. May be, the defendants had not produced any material to show that plaintiffs 1 and 2 had stolen any valuables belonging
to Sunderraj, the mere paucity of evidence in this regard will not show that Sunderraj was not disillusioned with his two brothers. He had given a
certificate to them that they had unnatural desire for wealth and contested the partition suit raising false and baseless contentions, as a result of
which he developed chronic hypertension.
58. The learned Senior Counsel also attempted to make a point of the fact that the suit was initiated only in 1970 and the testator had mentioned
about his getting chronic hypertension even in 1967. Suits do not get started only with the filing of a plaint. They are preceded by suit notices and
replies and they in then-turn are preceded by oral discussions and disagreements.
59. We can very well understand that even in 1967, plaintiffs I and 2 had denied the rights of Sunderraj to have a partition of the joint family
properties and that set the ill health ball rolling. We have already seen the contents of the defence of plaintiffs 1 and 2 to the earlier partition action.
After the final decree also they had been creating some problem or the other to Sunderraj and this had not come to a head even by the time
Sunderraj died on 21.6.1981. This is a concrete case where we are able to sit in the armchair on the testator and clearly visualise his pained
thoughts and his conviction that his brothers/plaintiffs 1 and 2 did not deserve any consideration from him.
60. The learned Senior Counsel by relying on Venkatachala Iyengar�s case in AIR 1959 SC 443 submitted that where there were suspicious
circumstances, the evidence should be substantial. We have already noticed that there are no suspicious circumstances in the instant case and the
Will has been satisfactorily proved to have been executed and attested as per Sec. 63 of the Indian Succession Act and Sec. 68 of the Indian
Evidence Act. Plaintiffs 1 and 2 had raised a bogey that Sunderraj was terminally ill, that he had no mental capacity, that he was not in a position to
talk, that he was not in a position to understand, and so on and so forth. The doctor, examined in this case and his certificate/Ex.B. 28, as already
noticed, clearly show that, Sunderraj was in a sound and disposing state of mind, and that he had his faculties intact when he executed the Will.
61. The learned Senior Counsel relied on the judgment of Govardhan, J. (as the learned Judge then was) in Shanmugasundaram v Lakshmi [1995-
1-LW 379]. This had been relied on for the purpose of showing that in the instant case the scribe/D.W. 2 had mentioned about a draft being
prepared and the same not having surfaced. There was, therefore, suspicion regarding execution of the Will. In that case, the daughter was
excluded. It was in evidence that the testator in that case had taken Dheetchai renouncing the interest in the worldly affairs and was writing Sivaya
Namaha under the belief that a person who writes Sivaya Namaha for more than a lakh of times will attain salvation. It was in evidence that the
testator did not even visit the house on the death of his wife and it was stated that he had gone behind the temple where he was staying when the
funeral procession of his wife passed through that place under the belief that he should not see the face of the dead body, if it were so, it was highly
improbable that he would execute the Will to the exclusion of his only daughter, the plaintiff in the suit and it was found to be a very suspicious
circumstance against the genuineness of the Will. In that case the attestor had not stated that he had seen the testator signing the first page of the
Will which consisted of two pages. The scribe also did not say that he saw the attestor signing both the pages even though he had stated that he
saw the testator signing the Will and the testator saw his signing the Will. When the attestor and the scribe of the Will had not spoken that they saw
the testator signing the first page of the Will, it could not be stated that they had proved the Will. The decision has no application to the facts of the
present case. There is clear evidence in this case that the typed draft prepared by DW2 on the basis of Ex. B. 3 was subsequently destroyed by
him. In the case decided by Govardhan, J. the non-production of the draft prepared was taken as an additional circumstance to discredit the case
of the propounder.
62. From the foregoing discussion, it would be clear that the onus had been satisfactorily discharged and the fraud and undue influence pleaded by
plaintiffs 1 and 2 had not been proved. There was nothing unnatural that among the sisters he had chosen D. 5 for giving more of his bounty than to
the other sisters. From 1979, she had taken care of him and it was in the fitness of things that he had developed a soft corner for the fifth
defendant. We have already referred to the judgment of the Supreme Court in Naresh Charan /Das Gupta v Fresh Charan Das Gupta [AIR 1955
SC 363] where an earlier decision in Hall v Hall [1868-1 P&D 481] had been noted with approval.
Persuasion, appeals to the affections or ties of kindered, to a sentiment of gratitude for past services, or pity for future destitution, or the like,?
these are all legitimate and may be fairly pressed on a testator.
As pointed out by the Supreme Court,
It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as Undue. It is open to a person
to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and
there is no element of fraud or coercion, the Will cannot be challenged.
63. The undue influence and the importunity set up by plaintiffs 1 and 2 have not been proved to be of the nature of fraud or duress, for taking a
view against the proper execution of the Will.
64. I find, absolutely, no merits in the case of the appellants. The propounders had shown that the Will was signed by the testator, that he was at
the relevant time, in a sound and disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the
testament of his own free Will, and that he had signed it in the presence of the two witnesses who attested it in his presence and in the presence of
each other. The onus which rested on the propounders had been duly discharged. The signature in the Will had not been found to be doubtful; the
testator had not been found to be of feeble mind or overawed by powerful minds interested in getting his property; there were also no relevant
circumstances showing that the dispositions were unnatural, improbable and unfair; or, the dispositions were not the result of the testators free will
and mind. There were no legitimate suspicious circumstances in the instant case in the due execution of the Will. This is not a case where the
propounders had taken an active or prominent part in the execution of the Will, which conferred on them any substantial benefit, and so as to make
it incumbent on them to remove the suspicious circumstances by clear and satisfactory evidence.
65. As pointed out by the Supreme Court in several decisions, starting from Venkatachala Iyengars case, the conscience of the Court has to be
satisfied that the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a
reasonable man may, in the relevant circumstances of the case, entertain.
66. As pointed out by the Privy Council in Motibai Hormusjees case AIR 1924 PC 28 = 19 L.W. 437.
A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing. The Court will not interfere with the exercise
of his volition.
In the present case, the testator had not acted foolishly or heartlessly. He had acted as an ordinary individual reacting to the callous manner in
which his brothers/plaintiffs 1 and 2 had treated him and denied him his lawful entitlement in the joint family properties. He had gone through hell
with them and there was, absolutely, nothing to show that he had acted heartlessly in preferring his sisters to his brothers, for being the objects of
his bounty.
67. So far as Ex.A.3 is concerned, it came to the notice of the Court under the following circumstances. While the suit was pending, the first
plaintiff/Thangaraj died. He died a bachelor. According to the second plaintiff, he left a Will Ex.A.3, dt. 13.2.1983 and as per the terms of the said
Will he had given his properties to the second plaintiff and his children/plaintiffs 3 and 4.
68. The case of the defendants was that it was not a genuine Will, and it had come into existence after the death of the first plaintiff. According to
defendants 1 to 5, as the first plaintiffs sisters they were entitled to their share in his properties.
69. In the Succession O.P. notice had been issued to the second plaintiff who was the sixth respondent therein. The Original Petition had come up
for hearing on 9.3.1984. As there was no counter filed by the respondents, the application was allowed. As it was represented that no counter was
being filed, it was argued for the petitioner in the Succession O.P. that the Will could not have been there in the hands of the second plaintiff on
9.3.1984. The second plaintiff had also admitted that on 9.3.1984 he had not filed his counter, and that the Original Petition was ordered. He had
also stated, only after the order in the Succession O.P., he had shown the Will to his lawyer, i.e. two months thereafter. As to why he did no!
disclose the Will even to his lawyer for two months, had not been explained.
70. It was also highly doubtful that the first plaintiff would have signed Ex. A.3 on 13.2.1983. The witness/P.W.2 had stated that on 13.2.1983 in
the morning he had come from Kuzhithurai to Nagercoil and seen Thangaraj in his house in Sargunam Street and he-signed in his Will. He could
not explain as to where the house was situate, how the house looked what type of construction was the house, etc. He had said that he came to
Kuzhithurai by Bus on that day. Significantly. on that day, the R.D.O. had imposed Sec. 144: there was firing in Nagercoil district; and the shops
had been closed and buses did not ply. It is unbelievable that he could have come to Nagercoil on that day and returned to Kuzhithurai. There was
an expert examined in that case as D.W.7, who had examined the signatures in Ex.A.3 with the admitted signatures of the first plaintiff and found
that they varied in material particulars. Her report has been marked as Ex. B. 40. The witnesses, examined to prove the Will, have not spoken to
the execution of Ex. A, 3 and attestation satisfactorily, the evidence is totally unsatisfactory and lacks credibility. The lower Court has rightly
disbelieved the due and proper execution of Ex. A.3. The oral evidence has been properly considered and rightly rejected. No case is made out
for interference. Consequently, A.S. No. 581 of 1987 is dismissed without costs and Tr. AS. No 105/1982 dismissed with costs.
