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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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