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Saturday, August 17, 2013

Will-Propounder taking prominent part, in execution of and receiving benefit under-Principles regarding scrutiny of evidence of execution and sound disposing state of mind of testator. HEADNOTE: One V lost his father when he was only 10 years old and. thereafter lived along with his mother, in the- house of the first defendant who was his maternal uncle. The first defendant had considerable influence over V as he was slow witted and below the average level of intelligence and, understanding. V died when he was 24 years old. A few. days before his death he executed a will by which he bequeathed his entire property to the first defendant absolutely with a direction that his mother should be maintained, and that, even if his mother lived separately from the first defendant, she was to have only a life interest in certain items which were also to be taken absolutely by the first defendant after her death. At the time of the execution of the -will V was physically in a weak condition. The first defendant took a prominent part in summoning the attesting witnesses and the scribe and in Procuring, writing materials for the execution of the will. Evidence was given on behalf the first defendant that though V was delirious on the day previous to the execution of the will and also subsequent to that date, V was in a normal condition on the date of the execution of the will. On the question of the validity of the will, HELD : The will was not executed in a sound disposing state of mind and was therefore not legally valid. [480,A-B] In a case in which a will is prepared under circumstance which raise the suspicion of the court that it does not express the mind of the testator it is for those who -propound the will to remove that suspicion. What are suspicious circumstances must be judged on the facts and circumstances of each particular case. If, however, the Propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in -such a case the court should proceed in a vigilant and cautious, manner. [477 R; 478 A-B] Barry v. Butlin, (1838) 2 Moo. P.C. 480, 482, Fulton v. Andrew, (1875) L.R. 7 H.L. 448, Tyrrell v. Painton, (1894) P. 151, 157, 159 and Sarat Kumari Bibi v. Sakhi Chand & Ors., 56 I.A. 62, applied.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=2120
PETITIONER:
GORANTLA THATAIAH

Vs.

RESPONDENT:
THOTAKURA VENKATA SUBBAIAH & ORS.

DATE OF JUDGMENT:
19/03/1968

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
MITTER, G.K.

CITATION:
 1968 AIR 1332  1968 SCR  (3) 473


ACT:
Will-Propounder taking prominent part, in execution of and
receiving  benefit  under-Principles regarding scrutiny  of
evidence  of execution and sound disposing state of mind  of
testator.



HEADNOTE:
One  V lost his father when he was only 10 years  old and.
thereafter lived along with his mother, in the- house of the
first  defendant  who  was his maternal uncle.  The  first
defendant  had considerable influence over V as he was slow
witted and  below the average level  of  intelligence and,
understanding. V  died when he was 24 years old.   A few.
days  before  his  death  he executed a will  by  which  he
bequeathed  his entire property  to  the  first  defendant
absolutely  with  a  direction that  his  mother  should  be
maintained,  and that, even if his mother  lived  separately
from  the  first  defendant, she was to have  only  a life
interest  in  certain  items which were also  to  be  taken
absolutely  by the first defendant after her death.  At the
time  of  the execution of the -will V was physically  in  a
weak condition. The first defendant took a prominent part in
summoning  the attesting witnesses and the  scribe  and  in
Procuring, writing materials for the execution of the  will.
Evidence was given on behalf the first defendant that though
V was delirious on the day previous to the execution of the
will  and  also subsequent to that date, V was in  a  normal
condition on the date of the execution of the will.
On the question of the validity of the will,
HELD : The will was not executed in a sound disposing  state
of mind and was therefore not legally valid. [480,A-B]
In  a  case in which a will is prepared under circumstance
which  raise  the suspicion of the court that  it  does not
express the  mind  of the testator it is  for  those who
-propound  the will  to remove that  suspicion.   What are
suspicious  circumstances  must be judged on the  facts and
circumstances  of  each particular case.  If,  however, the
Propounder  takes a prominent part in the execution  of the
will  which confers substantial benefits on him that  itself
is a suspicious circumstance attending the execution of the
will  and in appreciating the evidence in -such a  case the
court  should  proceed in a vigilant and  cautious,  manner.
[477 R; 478 A-B]
Barry  v.  Butlin, (1838) 2 Moo.  P.C. 480, 482,  Fulton  v.
Andrew, (1875) L.R. 7 H.L. 448, Tyrrell v. Painton,  (1894)
P.  151,  157, 159 and Sarat Kumari Bibi v.  Sakhi  Chand  &
Ors., 56 I.A. 62, applied.



JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 431 of 1965.
Appeal from the judgment and decree dated August 22, 1963 of
the Andhra Pradesh High Court in Appeal No. 554 of 1959.
H. R. Gokhale and K. R. Chaudhuri, for the appellant.
D. Narsa Raju, S. T. Desai, A. Vedavalli and A. V. Rangam
for the respondents.
474
The Judgment of the Court was delivered by
Ramaswami,  J. This appeal is brought by certificate on be-
half of the plaintiff from the judgment of the High Court of
Andhra Pradesh in Appeal Suit No. 554 of 1959 dated  August
22, 1963.
One Gorantla Tathiah, as the, sole plaintiff, filed O.S. No.
2 ,of 1957 in the Court of the Subordinate Judge'.   Bapatla
for possession of certain properties which had been left  by
Gorantla  Veeriah when he died issueless on June  24,  1939.
Originally,   there  were  ten defendants  in the   suit.
Defendant  no. 1  is  the maternal  uncle  of Veeriah and
Defendant  no. 2  and Defendant .no. 3 are,  the  sons  of
Defendant  no. 1. Defendants nos. 4 to 8 were  the  alienees
from Defendant no. 1's family. Defendants nos. -7, 9 and 10
did  not  contest  the suit.  Defendant no. 8  died  in the
,course of the suit and his legal representatives were added
as  Defendants I I to 14.  Defendants 1 to 3  contested the
suit on the ,ground that Defendant no. 1 became entitled  to
the  properties of Veeriah under the will, Ex.  B-4  dated
June, 17, 1939 which Veeriah executed in his favour.  It was
contended  in  the alternative -that at the  time  when the
reversion opened on the death of Veeriah's mother,  Rattamma
on October 1, 1956, Defendant no. 1 was the nearest heir and
not  the plaintiff, under the Hindu Succession Act  (XXX  of
1956)  which had come into force on October 17, 1956. The
Additional  Subordinate Judge, Bapatla held' that  the will
was true and genuine but it was not legally valid as it was
executed  by Veeeriah at a time when he had no testamentary
capacity.   It was also held that the Hindu  Succession Act
did  not  apply to the facts of the  case.   The  Additional
Subordinate   Judge   accordingly  granted  a decree for
-possession  of properties except -item no. 4 in favour of.
the plaintiff as against Defendants nos.  I to 3, 6, 7 and I
I to 14.  Defendants I to 3, 7, 1 1 and 1 3 took the  matter
in  appeal  to the  High  Court  of  Andhra  Pradesh. The
plaintiff also Preferred a Memorandum of Cross Objections to
the  -,extent the trial Court's decree was against him.  By
its  judgment dated August 22, 1963, the High Court  allowed
the appeal, holding that the will, Ex. B-4 was executed  by
Veeriah in a sound and disposing state of mind and that the
will was not only true but was -valid and binding upon the,
plaintiff.   The High Court accordingly dismissed the  suit.
The Memorandum of Cross Objections was also dismissed.
The  first  question  to be considered in  this  appeal  is
whether the  will, Ex. B-4 was true and  genuine  and was
executed by Veeriah in a sound and disposing state of mind.
It  is not disputed that one Gangiah died leaving his  widow
Rattamma  and his only son through her called Veeriah and  a
-young daughter.  The girl died without leaving any issue in
the  -year  1932.  Veeriah was a little boy and it  is not
disputed that
475
he  was below average, in intelligence and  understanding.
Rattamma  alongwith  her  son took  up residence  with her
brother,  Defendant no. I who was a man of great wealth and
influence  in the. village, owning fifty acres of  land and
outstanding   credits  to  the extent of   Rs.   20,600/-.
Rattamma's  husband had left properties to the extent of  13
acres of land. In spite of owning so much property  Veeriah
was engaged as a cow-boy in tending  cattle.  In June  1939,
he  had an attack of typhoid, became bed-ridden  and  ulti-
mately died of the disease on June 24, 1939.  The  case  of
the  contesting defendants was that  Veeriah  executed the
will,  Ex.  B-4 on June 17, 1939, that D.W. 4 wrote  it and
nine  witnesses attested it but the will was not  registered
in Veeriah's life-time. On October 15, 1939, defendant no.
1. and Raittamma presented the will, Ex. B-4 before the Sub-
Registrar,  Chirala  for registration. The  Sub-Registrar,
however, refused to register the, will by his order, Ex.  A-
45  in W.C. 4 of 1939. Defendant no. 1 preferred an  appeal
before the  District Registrar, Guntur but the appeal was
dismissed.   Defendant no.  I then filed O.S. no.   III  of
1940  in  the  court of District  Munsif,  Bapatla  against
Ramayya (father of defendants 9 and 10), the plaintiff and
Rattamma for a direction for registration of the will. The
District  Munsif returned the will to defendant no.   I for
want of pecuniary ,jurisdiction.  Defendant no. 1  presented
it to the Subordinate Judge, Bapatla and got it numbered  as
O.S.  no. 6 of 1941.  The suit was ultimately  dismissed  by
the Subordinate Judge on the question of limitation.  Defen-
dant  no.  1 and Rattamma filed O.S. no. 13 of 1942  in the
Subordinate  Judge's court, Bapatla for a  declaration that
the  will  was genume and valid.  Ramayya  filed  a  written
statement  and the suit was ultimately decreed in favour  of
Defendant  no. I  and Rattamma.   The present  plaintiff,
Gorantla Tathaiah was, however, not a party to that suit.
In  the will, Ex.  B-4 it is stated  by  the testator  as
follows
     "...  Typhoid  condition has set in.   As  no
     treatment has been effective in curing this
     condition I have lost confidence that I will
     survive. Therefore I have wholeheartedly made
     the following disposition regarding my movable
     and  immovable properties in order that  there
     may  be  no  obstruction in  future  from any
     source whatsoever.
     That  my mother Rattamma should be  maintained
     comfortably for her life-time and.that in case
     there  is disagreement  between her  and   I
     material uncle. Venkatasubbayya  and they
     decide   to   live  separately, my   mother,
     Rattamma, should enjoy the  income  of the
     property mentioned  in 'B' Schedule  for her
     life-time without  exercising any  powers  of
     disposition  by way of gift, sale etc., over
     the property and that after her life.
L7 Sup. C.I./68-6
476
     time.  the  entire property mentioned  in 'B'
     schedule should devolve in my maternal  uncle,
     Venkatasubbayya.   My maternal     uncle,
     Venkatasubbayya shall enjoy the   entire
     properties mentioned in 'A' and 'B'  Schedules
     with absolute powers of disposition by way  of
     gift, sale etc."
In  the will it is mentioned that Veeriah had sold his land
on  May 30, 1939 to defendant no. 4 and received an  advance
of  Rs. 165/with the stipulation that the balance  of sale
price should be paid at the time of registration.   Veeriahl
also  said  that  in  case he  did  not live  long  enough,
defendant  no. 1 should complete the sale  transaction and
receive the balance of price from defendant no. 4. The will
was written by one Ammanamanch Sambiah, D.W. 4 the karnam of
the village.  There are 9 attesting witnesses of whom  three
are dead.  On behalf of the plaintiff two of the;  attestors
P.Ws. 8 and 9 were examined and two attesting witnesses were
examined as Court witnesses I and 2. On behalf of defendants
two attesting witnesses D.v. I and 6 besides the scribe D.W.
4  gave evidence.  P.W. 8 deposed that the testator did not
give any instructions or particulars for drafting the  will.
The  testator was very weak and in a delirious state and  he
was  not  in a position to put his thumb impression  to the
will. P.W.  9 is stone deaf and he could not give  proper
evidence.  He did not remember if Veeriah was raving and was
tearing his clothes.  D.Ws. 1, 4, 6 and 14 and C.Ws. 1 and 2
say that the testator was in a sound and disposing state of-
mind. It was the testator who gave instructions  regarding
the  disposition of the properties.  D.W. 4 wrote  the will
and  read it over to Veeriah who approved of it and put his
thumb impression thereon.  The evidence of P.Ws. 8 and 9  is
therefore  clearly in conflict with the evidence of C.Ws.  I
and 2 and D.Ws. 1, 4, 6 and 14. The evidence of C.Ws. I and
2  is interested.  It is admitted that C.W. I is related  to
defendant  no. 1  and C.W. 2 is  indebted  to  the  first
defendant to the extent of Rs. 1,400/-. As regards D.Ws. 1,
4  and 6, the trial court has remarked that their  testimony
is  not impartial and we see no reason to take a  different
view  as regards the effect of their testimony. So  far  as
D.W. 1 is concerned, he appears to have khatha dealings with
the  first defendant.  D.W. 4 admitted that he and  Venkata-
swamy  were  good friends and worked as karnam and  Village
Munsif for 30 years.  There was a case of  misappropriation
against Venkataswamy  and D.W. 4 deposed in his  favour  in
that  case.   It is in evidence that D.W. 6  is related  to
Ambati Veeriah who is married to  the,  first defendant's
niece. With  regard to P.Ws. 8 and 9 the  High  Court has
remarked that they had attested the will without any protest
or  adding any note Of protest though the testator,  Veeriah
was  not  in  a sound state of mind  at  the  time  of the
execution of the will. In our opinion, this circumstance is
of  no consequence and the High Court was not  justified  in
reject-
477
ing the evidence of P.Ws. 8 and 9 on this ground alone.  On
the  other  hand, there are two important  features  in the
present case which throw a great deal of doubt as to whether
the  testator was in a sound and disposing state of mind  at
the time of the execution of the will. It is- the  admitted
position that, the first defendant took a prominent role  at
the  time  of  the execution of the will  by  summoning the
scribe and the attesting witnesses.  It is stated by D.W.  1
that   the  first  defendant,  also  procured  the   writing
materials   and the  black  ink  for  affixing the   thumb
impressions of the witnesses.  It is also admitted that the
will preferred the first defendant to the mother.  Normally,
the  testator would have bequeathed all )us property to the
mother and would- have also given her power to adopt a boy
to perpetuate the lineage of the family.  Instead the mother
was given, in the will, a life interest in items 1 and 6 and
the  rest  of  the  properties were  given  absolutely  to
defendant  no. 1. It is undisputed that the testator was  24
years  of age at the time of the execution of the  will and
that he was far below the average level of intelligence and
understanding  and  nobody was prepared to offer a  girl  in
marriage  to  him.   There  is evidence  that Veeriah was
"lacking  in  wits"  and that he was  employed for  tending
cattle.  Further  more,  the testator was  suffering from
typhoid fever at the time of the execution of the will and
he  died a week thereafter i.e., on June 24, 1939.   In Ex.
B-4 it is recited that the testator was ailing for about  15
days and had become delirious. According to D.W. 4 when  he
arrived Veeriah  was  lying on a cot and he was  not  in  a
position  to  sit up by himself.  Both D.Ws. I and  4  admit
that the attesting witnesses and the scribe had all bled and
waited for nearly an hour, Both P.Ws. 8 and 9 say  that  at
the  time  of the execution of the will.  Veeriah was  in  a
delirious  state.   D.Ws, 1, 4, 6, 14 and C.W. I  all  admit
that  the testator was delirious on the-day previous to the
execution of the will and also subsequent to the day of the
execution of the will. These witnesses, however, state that
the testator, was quite all right and in normal condition on
the  date of the execution of the will. It is difficult  to
accept this part of the defence evidence.  Considering that
the  condition of the testator became, worse and he  died  a
week  thereafter it is difficult to accept the, evidence  of
defence witnesses and of CW.  I that the testator was, in  a
sound state of mind on the date of the execution of the win
but he was in a delirious 'state the day before and the day
after  the  execution  of the will.   In  our  opinion, the
Subordinate  Judge  was right in his  conclusion  that the
testator was physically weak and in a delirious mental state
at the time of the execution of the will.  We think the High
Court  had no justification for reversing the view taken  by
the Subordinate Judge on this point.
It  is well-established that in a case in which a  will  is
prepared  under circumstances which raise the  suspicion  of
the court that it does not express the mind of the  testator
it is for those who pro-
478
pound the  will  to  remove  that  suspicion.  What are
suspicious  circumstances  must be judged in the  facts and
circumstances  of  each particular case. -If,  however, the
propounder  takes a prominent part in the execution  of the
will  which confers substantial benefits on him that  itself
is  a suspicious circumstance attending-7 the  execution  of
the  will and in appreciating the evidence in such  a  case,
the court should proceed in a vigilant and cautious  manner.
It    is   observed   in   Williams   on   "Executors and
Administrators", Vol. I, 13th Ed., p. 92:
     "Although the rule of Rom an Law that 'Qui  se
     scripsit haeredem' could take no benefit under
     a will  does  not  prevail  in  the  law'  of
     England, yet, where the person  who  prepares
     the instrument, or conducts its execution,  is
     himself benefited by its dispositions, that is
     a circumstance which ought generally to excite
     the suspicion of the court, and calls on it to
     be  vigilant  and zealous  in  examining the
     evidence in  support  of the  instrument  in
     favour  of  which it ought not  to  pronounce,
     unless  the  suspicion is removed, and  it  is
     judicially  satisfied  that  the paper does
     express the true will of the deceased."
According to the decision in Fulton v. Andrew('), "those who
take  a benefit under a will, and have been instrumental  in
preparing or obtaining it, have thrown upon them the onus of
showing,  the righteousness of the transaction ". "There  is
however no  unyielding rule of law  (especially  where the
ingredient of fraud enters into the case) that, when it has
been  proved that a testator, competent in mind, has  had  a
will  read over to him, and has thereupon executed  it, all
further enquiry  is  shut out".  In  this  case,  the Lord
Chancellor,  Lord Cairns, has cited with approval the  well-
known  observations of Baron Parke in the case of  Barry  v.
Butlin (2).  The two rules of law set out by Baron Parke are
: "first, that the onus probandi lies in every case upon the
party propounding a will; and he must satisfy the conscience
of the court that the instrument so propounded is- the last
will of a free and capable testator"; "the second is,  that,
if a party *rites or prepares a will under which he takes  a
benefit,  that is a circumstance that ought  generally  to
excite the suspicion of the court and calls upon it  to  be
vigilant and zealous in examining the evidence in support of
the instrument in favour of which it ought not to  pronounce
unless the  suspicion is removed,- and  it  is  judicially
satisfied  that the paper propounded does express  the true
will of the deceased." In Sarat Kumari Bibi v. Sakhi Chand &
Ors.,  (3)  the Judicial Committee made it clear  that "the
principle which requires the propounder to remove suspicions
from  the  mind of the Court is not confined only  to  cases
where the propounder takes part in the
(1)  (1875) L.R.7H.L.448.  (2) (1838) 2 Moo. P.C.480,482.
(3)  56 I.A. 62.
479
execution of the will and receives benefit under it.   There
may  be other suspicious circumstances  attending  on the
execution of the will and even in such cases it is the duty
of  the propounder  to remove all clouds  and satisfy the
conscience  of the court that the instrument  propounded  is
the  last will of the testator." This view is  supported  by
the  following observations made by Lindley and  Davey,  L.
JJ., in Tyrrell v. Painton(1):
     "The  rule in Barry v. Butline (2 Moo. P.C.
     480);  Fulton  v. Andrew [(1875) L.R.  7,H.L.
     448]; and Brown v. Fisher [(1890) 63 L.T. 465]
     is not, in my opinion, confined to the  single
     case in which a will is prepared by or on the
     instructions of the person taking large  bene-
     fits  under  it, but extends to all  cases  in
     which  circumstances  exist which excite the
     suspicion of  the Court; and  wherever such
     circumstances exist, and whatever their nature
     may be, it is for those who propound the will
     to remove such suspicion and to prove affirma-
     tively that the testator knew and approved  of
     the  contents of the document, and it is only
     where this is done that the onus is thrown  on
     those  who oppose the will to prove  fraud  or
     undue influence, or whatever else they rely on
     to  displace  the case made  for proving the
     will." (Lindley, L.J.).
     "It  must not be supposed  the  principle  in
     Barry v Butlin (2 Moo.  P.C. 480) is  confined
     to  cases where the person who  prepares the
     will is the person who takes the benefit under
     it-that is one state of things which raises  a
     suspicion; but the principle is that  wherever
     a will is prepared under circumstances  which
     raise  a well grounded suspicion that it does
     not express the mind of the testator the Court
     ought not to pronounce in favour of it  unless
     that suspicion is removed." (Davey, L.J.).
It  is in the light of these principles that  the  evidence
adduced in this case will have to be considered.  As we have
already pointed  out, there is abundant testimony  in this
case  which  proves  'beyond doubt  that  the  testator was
physically  in a  weak condition and that  he  was  in  a
delirious state of mind at the time of the execution of the
will. It  is admitted that the  first  defendant  took  a
prominent part in summoning the attesting witnesses and the
scribe and  in procuring the writing materials  for the
execution of the will. There is also evidence that  Veeriah
lost his father, Gangiah when he was hardly 10 years of age
and  after  Gangiah's  death  the  first  defendant  brought
Rattamma  and  Veeriah to his house and was  looking  after
them., The  first  defendant  had  therefore considerable
influence over Veeriah and his mother Rattamma.
(1) (1894) P. 151,157,159.
480
There  is  also the circumstance that Veeriah  was  only  24
years of age at the time of the execution of the will and he
was slow witted and below the average level of intelligence
and  understanding.  Having regard to the cumulative  effect
of  all the circumstances we are of opinion that  the  will,
Ex.   B-4  was not  executed by  Veeriah  in  a  sound and
disposing  state  of  mind and was  not legally  valid and
binding upon the plaintiff.  We accordingly set  aside the
finding of the High Court on this issue.
It  is, however, not possible for us to finally dispose  of
this  appeal  because the High Court has  not  examined the
second question arising in this case, namely, whether the
Hindu Succession Act (Act XXX of 1956) is applicable to the
case  and  whether defendant no. 1 was the nearest  heir  to
succeed to the estate of the deceased Veeriah in  preference
to all others including the appellant, defendants 9 and 10.
We  therefore consider it necessary that the case should  go
back  to the High Court for hearing the parties afresh and
recording  a  finding on this question and to submit  it  to
this  Court within three months from the date of receipt  of
the  record  by the High Court.  The parties  will  not  be
allowed to give additional evidence in the case and the High
Court will submit a finding on the evidence already  adduced
by  the parties.   The appeal will be placed for  further
hearing before this Court after the finding is submitted  by
the  High  Court in accordance with the directions  we have
given.
V.P.S.       Appeal remanded.
481



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