Before taking up for consideration the genuineness or otherwise of the two wills in question it may be convenient to set out briefly the legal position regarding the proof of wills.
12. In Barry v. Butlin (1838) 2 Moo PC 480 a passage that has since become a locus classicus, Baron Parke formulated two rules regarding the proof of wills. He said:
These rules are two: the first, 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 writes 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 jealous 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.
The first of the above two propositions can hardly be a matter of doubt or dispute (vide Fulton v. Andrew. (1875) 7 H L 448 ):
"A will", said Lord Buckmaster in Ram Gopal v. Aipna Kunwar,AIR 1922 PC 366 "is one of the most solemn documents known to the law. By it a dead man entrusts to the living the carrying out of his wishes and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law".
13. This burden is not confined to cases where propounders of a will seek a probate. Even in cases where the legal heirs of a deceased seek for a declaration that the will propounded by the defendants is a forgery, the onus is still on the defendants to prove beyond reasonable doubt that it was the will of the deceased. (Vide Bindeshri Prasad v. Mt. Baisakha Bibi, 24 Cal WN 674 : (MANU/PR/0078/1919 : AIR 1920 PC 70). The burden of proof thus cast upon the propounder is, in general discharged by proof of the sound and disposing state of the testator's mind and his signature as required by law and when these have been proved, the court under ordinary circumstances would be justified in pronouncing in favour of the propounder.
14. As to the second rule formulated by Baron Parke , it has been pointed out by Lindely and Davy L. JJ. in Tyrrell v.painton 1894-P. 151 that it is not confined merely to a case in which a will is prepared by or on instructions of the person taking large benefits under it, but extends to all cases in which circumstances exit which excite the suspicion of the Court. The principle of the decision in 1894-P. 151 must be, as pointed out by Jenkins C.J. and Woodroffe J. in Jarat Kumari Dassi v. Bissessur Dutt, ILR 39 Cal 245
one inherent in the transaction itself, and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction.
What those suspicious circumstances are cannot be defined precisely or enumerated exhaustively. They must depend necessarily upon the facts of each case. Though a propounder has the obligation to prove the will in accordance with law and remove all well grounded suspicions, the quantum of proof that can be expected cannot conform to scientific exactitude or mathematical precision. The standard of proof can only be one that will satisfy a normal prudent person
15. It may however, be observed that when a question arises as to whether the will is genuine or a forgery, normally the fact that nothing can be said against the reasonable nature of the provisions will be a strong and material element in favour of the probability of the will (vide Bamasundari Debi v. Tara Sundari Debi, ILR 19 Cal 65 . In Mt. Jagrani Koer v. Durga Parshad,ILR 36 all 93 at p. 98 (PC) Lord Shaw observed as follows:
In the case of a will reasonable natural and proper in its terms, it is not in accordance with sound rules of construction to apply to it those canons which demand a rigorous scrutiny of documents of which the opposite can be said, namely, that they are unnatural, unreasonable, or tinged with impropriety.
16. These principles long established by the wisdom of the judges of the Highest courts are of value only for general guidance for ultimately. Whether a will has been really executed by the testator in a sound and disposing state of mind is purely a question of fact which will have to be decided in each case on the circumstances disclosed and on the nature and quality of the evidence adduced.
Andhra High Court
Ryali Kameswara Rao vs Bendapudi Suryaprakasarao And ... on 2 December, 1960
Equivalent citations: AIR 1962 AP 178
Bench: S Raju, Seshachalapati
(2) On 22nd of August 1954, one Ryali Ramamma, the widow of Ryali Sashagiri Rao, died, in the house of her sister, Chandramathi the 1st defendant in the suit, at Eluru. On 21-9-1954 the appellant, Ryali Kameswara Rao, the brother of late Seshariri Rao launched an action claiming the lands houses, personal effects, outstanding and deposits that Ramamma died possessed of and described in Schedule 'A' to 'E' and for a declaration that the will alleged to have been executed by her on 21-8-1954 is neither genuine, nor valid, that she died intestate and for other ancillary relief's.
(3) Originally 19 defendants were impleaded in the suit. The 1st defendant is the sister of the deceased Ramamma. After the institution of the suit the 1st defendant died and in addition to defendants 2 to 8 who were already on record her daughter, Mallampalli Suseela, was declared as her legal representative and was impleaded as the 20th defendants 2 to 7 are the sons of the 1st defendant. The 8th defendant is her husband. Defendants 9 to 19 have been impleaded as being tenants in possession of certain items of properties described in Schedules 'A' and 'B' to the plaint.
(4) The case of the plaintiff as disclosed in the plaint is as follows: Seshagiri Rao was the divided elder brother of the plaintiff. He died childless and intestate in February 1942 leaving several properties, moveable and immoveable, some acquired in his own name and others in the name of his wife. After his death his widow Ramamma was in possession of the properties, moveable and immoveable, some acquired in his own name and others in the name of his wife. After his death his widow Ramamma was in possession of the properties as a limited owner and made several accretions thereto. Ramamma contracted tuberculosis a year prior to her death and died on 22-8-1954. The plaintiff who is the nearest heir to Seshagiri Rao is entitled to the properties described in Schedules 'A' to 'E', When he came to Eluru on the 25th of August 1954 to claim his reversion, defendants 1 to 8 set up a will alleged to have been executed by Ramamma on 21-8-1954. Ramamma, it is alleged, executed no such will, that she was too ill to do so, and any document purporting to be her last will should be a forgery. He claimed therefore for the possession of the properties and other declarations and relief's to already.
(5) Defendants 1 to 8 and defendant 20 in their written statements pleaded that Seshagiri Rao on 26-2-1942 leaving a registered will bequeathing all his properties absolutely to Ramamma and giving her also a power to adopt a boy of her own personal stridhanam properties to defendants 1 to 8 in the manner provided in her will. It is, therefore, alleged that the plaintiff is not entitled to recover the properties or to seek the declarations asked for in the plaint. The correctness of the Schedule 'B' and 'C' has also been challenged.
(6) Defendants 9 to 19 are tenants in possession of various items of properties in Schedule 'A' and 'B'. Defendant 19 set up an agreement of sale alleged to have been executed by Ramamma on 8-8-1954. Their defenses have no material bearing upon the main question that fell to be decided by the trail court or debated before us.
(7) Upon the contentions contained in the pleadings the trail court framed as many as 16 issues. The relevant issues for the disposal of the present appeal are issues 4,5and 6 which are in these terms:
4. "Whether the will dated 26-2-1942 executed by Seshagiri Rao is true, valid and binding on the plaintiff?
5. Whether the will dated 21-8-1954 executed by Ramamma Garu, is true, valid and binding on the plaintiff?
6. Whether the said will was brought about by undue influence by defendants 1 to 8."
(8) On issues 4, the finding of the learned judge is that the will alleged to have been executed by Seshagiri Rao on 26-2-1942 is the last will and testament executed by him in a sound and disposing state of mind in the presence of the attests. On issue 5 the learned Judge held that the will alleged to have been executed by Ramamma on 21-8-1954 was executed by her in a sound and disposing state of mind and that it is true and binding on the plaintiff. On issue 6 the finding is that the allegations that the will of Ramamma dated 21-8-1954 was brought about by undue influence of defendants 1 to 8 had not been made out. In view of those findings on the principal issues in the case the learned Judge dismissed the suit of the plaintiff with costs.
(9) It is the correctness of the learned Judge on issues 4 to 6 that has been very strenuously assailed before us. The principal question that falls to be decided by us whether or not the two wills in question are true and genuine. Though some of the witnesses that have attested the wills are common, the nature of the bequests made under the wills and the facts and circumstances connected with their execution are entirely different and, therefore, it would be convenient deal with them separately.
(10) The plaintiff is the younger brother of Seshagiri Rao. They were both the sons of one Ryali Subbarao, who was a teacher in Eluru and owned a share in the proprietary school. Ryali Subbarao died in 1938. At the time of his father's death Seshagiri Rao was a man of 35 years of age and was employed as a teacher in the Municipal High School, Eluru. About 5 or 6 years prior to subbarao's death, Ramamma would appear to have quarrelled with her father-in-lae and in consequences, Seshagiri Rao became divided from his father and was living separately with his wife. Ryali Subbarao, executed a registered will on 18-6-1928 leaving his ancestral tiled house and site in his native village of Ryali to his two sons to be decided equally between them and bequeathing moveable and immoveable including his assets and moneys to his second son, Kameswaran Rao, the plaintiff who was then a young man of about 17 years. Seshagiri Rao was one of the attestors to that will.
Eventually the plaintiff completed his education and secured an appointment as Mathematics Assistant in the Mahboob College High School, Secunderabad and has been living in Secunderabad all along. The brother, therefore,were wholly divided in estate. However, from the several letters written by Seshagiri Rao to the plaintiff, which have been produced at the trial it would appear that their relation were cordial. Seshagiri Rao was publishing small text-books in Geography and was perhaps augmenting his modest resources. Seshagiri Rao was childless and was devoted to his wife who appears to have been a lady of some education as, it is stated, she acted as a bench Magistrate for sometime. There is evidence in this case to show that Seshagiri Rao was attached to the children of his wife's sister. Seshagiri Rao fell ill a few months before his death. It does not appear that he ever wrote to the plaintiff when he was ill, or that the plaintiff ever visited him during his illness. On 26-2-1942 Seshagiri Rao died leaving a will, which was registered on the same day and which is one of the questions in conversy in this appeal.
(11) Before taking up for consideration the genuineness or otherwise of the two wills in question it may be convenient to set out briefly the legal position regarding the proof of wills.
(12) In Barry v. Butlin (1838) 2 Moo PC 480 a passage that has since become a locus classicus, Baron Parke formulated two rules regarding the proof of wills. He said:
" These rules are two: the first, 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 writes 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 jealous 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."
The first of the above two propositions can hardly be a matter of doubt or dispute (vide Fulton v. Andrew. (1875) 7 H L 448):
"A will", said Lord Buckmaster in Ram Gopal v. Aipna Kunwar, AIR 1922 PC 366 "is one of the most solemn documents known to the law. By it a dead man entrusts to the living the carrying out of his wishes and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law".
(13) This burden is not confined to cases where propounders of a will seek a probate. Even in cases where the legal heirs of a deceased seek for a declaration that the will propounded by the defendants is a forgery, the onus is still on the defendants to prove beyond reasonable doubt that it was the will of the deceased. (Vide Bindeshri Prasad v. Mt. Baisakha Bibi, 24 Cal WN 674 : (AIR 1920 PC 70). The burden of proof thus cast upon the propounder is, in general discharged by proof of the sound and disposing state of the testator's mind and his signature as required by law and when these have been proved, the court under ordinary circumstances would be justified in pronouncing in favour of the propounder.
(14) As to the second rule formulated by Baron Parke , it has been pointed out by Lindely and Davy L. JJ. in Tyrrell v.painton 1894P.151 that it is not confined merely to a case in which a will is prepared by or on instructions of the person taking large benefits under it, but extends to all cases in which circumstances exit which excite the suspicion of the Court. The principle of the decision in 1894-P. 151 must be, as pointed out by Jenkins C.J. and Woodroffe J. in Jarat Kumari Dassi v. Bissessur Dutt, ILR 39 Cal 245 "one inherent in the transaction itself, and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction".
What those suspicious circumstances are cannot be defined precisely or enumerated exhaustively. They must depend necessarily upon the facts of each case. Though a propounder has the obligation to prove the will in accordance with law and remove all well grounded suspicions, the quantum of proof that can be expected cannot conform to scientific exactitude or mathematical precision. The standard od proof can only be one that will satisfy a normal prudent person (15) It may however, be observed that when a question arises as to whether the will is genuine or a forgery, normally the fact that nothing can be said against the reasonable nature of the provisions will be a strong and material element in favour of the probability of the will (vide Bamasundari Debi v. Tara Sundari Debi, ILR 19 Cal 65 (PC). In Mt. Jagrani Koer v. Durga Parshad, ILR 36 all 93 at p. 98 (PC) Lord Shaw observed as follows:
" In the case of a will reasonable natural and proper in its terms, it is not in accordance with sound rules of construction to apply to it those canons which demand a rigorous scrutiny of documents of which the opposite can be said, namely, that they are unnatural, unreasonable, or tinged with impropriety."
(16) These principles long established by the wisdom of the judges of the Highest courts are of value only for general guidance for ultimately. whether a will has been really executed by the testator in a sound and disposing state of mind is purely a question of fact which will have to be decided in each case on the circumstances disclosed and on the nature and quality of the evidence adduced.
(16a) We will now take up for consideration the will of Seshagiri Rao dated 26-2-1942 and marked as Ex.B-10.
(17) The will is written in Telugu language from the official transition produced it appears the provisions are brief and simple. There is a reference to the fact that seshagiri Rao was divided from his brother, the present plaintiff to Whom their father conveyed by a will his entire self acquired properties, Which were dealt with in the will are a house in Eluru, Which were dealt with in the will are a house in Eiuru, Which seshagiri Roa purchased from her his brother, a life insurance policy and 35 shares in Eiuru, Urban Bank. He bequeathed to his wife the house in Agraharam Eiuru, and the life insurance amount with absolute rights. He gave her also an authority to adopt a boy of her choice at any time she chose.
There was a direction in the will that the testator's wife should make provision for the adopted boy and that she should give the 35 shares in the Eluru Urban Bank to the All India Hindi Pracharak Society of Wardha. The writing of the will covers two sheets of paper and a part of the third. At the foot of the first and second sheets and beneath the written matter in the third sheet there are the signatures of Sehagiri Rao . The will was registered by the Sub-Registrar between 12.00 A.M. and 1.00 P.M. on 26-2-11942 was endorsed on it his certificate which is the matter of some comment and shall be dealt with later. The points that fall for determination in regard to this will are: (i) whether Seshagiri Rao signed and executed the will; and (ii) whether he had sound and disposing state of mind.
(18) The will was written by one Ajjarapu Venkatarao, between the hours of 8-30 A.M. and 9.30 A.M. It was attested by four witnesses, Edara Venkatarao P. Narasimham, Bendapudi Sundaramurthy and G. Venkata Sashayya. By the time of the trail of the suit, P. Narasimham was dead. The three surviving attestors Edra Venkatarao, were examined as D. Ws. 8.1 and 7 respectively. The scribe was not examined. There is no evidence, however, that he was not alive, at the time of the trail of the suit.
(19) D. W. 7 is an employee in 'Venkatarao the proprietor of 'Venkatarama and Company' Elura.
(20) At the time of giving the evidence he was a gentleman of about 78 years of ago.
(21) He is a man of considerable income and wealth and the owner of a big flourishing firm of printers and publishers. He says that the testator was then in a sound and disposing state of mind. D. W. 7 and 8 are also two of the 4 attestors of Ex. B-1.
(22) As pointed out by the trial court the cross-examination of these witnesses was principally with reference to Ex. B-1 and it would appear there was no serious challenge as to the genuineness of seshagiri Rao's signatures in Ex. B-10.
(23) It has, however, been suggested before us that the signatures of Seshagiri Rao on Ex. B. 10 shoe shakiness in writing, which raises a suspicion as to their genuineness when compared with the signatures of Seshagiri Rao in Ex. A. 22 and in some of the letters produced. At the time of the execution of Ex. B. 10 Seshagiri Rao was a dying man and naturally the writing cannot be expected to be so firm as his earlier signatures made at a time when he was healthy and strong. In Sankarareddi v. Mahalakshmamma, 17 Mad L W 1 : (AIR 1922 PC 315) the Privy Council in meeting a similar objection as to shakiness of the writing observed thus:
"It was said against the will that the signature of the deceased was in a shaky hand. It is to be noted that it was not said that the signature was uncharacteristic but merely that it was shaky. Their Lordships do not think that is an objection in which there is much weight. Indeed, so far it seems almost favour of the will being genuine, because, if a man sets himself to commit a forgery, he would naturally try to make the signature as exactly like the genuine signature as he could, and certainly would not introduce shakness into the signature.' (vide also Madhavayya v. Achamma AIR 1949 PC 325).
(24) We have looked at the signatures in Ex. B-10. We cannot resist the conclusion that though shaky the signatures are certainly not uncharacteristic of Seshagiri Rao's admitted signatures. Further, there is the direct evidence of three surviving attestors to the effect that they saw Seshagiri Rao executing the will.
(25) It is contended by the learned counsel for the respondents that the registration is a solemn act and all things done by the Sub-Registrar must be presumed to be duly done and in order. (Vide Gangamoyi Debi v. Troiluckhya Nath ILR 33 Cal 537 (PC). It is therefore argued that in as much as the certificate of the Registrar is admissible under Sec. 60 (2) of the Indian Registration Act and it contains a recital that Seshagiri Rao admitted the execution of the will, there can no longer be any challenge as to the genuineness of Seshagiri Rao's signatures. The learned counsel for the appellant does not dispute the position that an endorsement or a certificate made by the Registrar upon a will is admissible under Sec. 60 (2) of the Indian Registration Act. But what is urged is that in the instant case the certificate is not entitled to much weight. It is, therefore necessary to extract the terms of the certificate, which reads thus:
"Presented at house T. S. No. Nil in Satyanarayanapuram Agraharam, Eluru between the hours of 12-00 noon and 1 P.M. on the 26th February 1942 by Ryali Seshagiri Rao. This document was presented by the testator himself in the presence of the witnesses. But as he became physically incapacitated he was unable to affix his signature to the above endorsement. Execution admitted by Ryali Seshagiri Rao, son of Subbarao, Brahmin, teacher Eluru. The testator who was in full possession of his senses at the time admitted execution of this document and also affixed his thumb impression to this endorsement before me in the presence of the witnesses but as became physically incapacitated all of a sudden soon after he affixed his thumb impression he was unable to sign this endorsement. The testator was identified by one Bendapudi Sundara Murthy, son of Sundararamayya, Brahmin, Supervisor. Municipal Elementary School, Eluru (2) N.Ranasastri, son of Subbarao Brahmin business, Eluru but their signatures were not obtained to the endorsement as the testator became unconscious by the time his signature can be obtained to the endorsement."
(26) The learned counsel for the appellant has subjected this endorsement to some sharp criticism. It is contended that the fact recorded are so unnatural and improbable as to throw serious suspicion about the veracity of the recitals. It is suggested that, if Seshagiri Rao was conscious when he admitted the execution of the will it is incredible that he should have lost consciousness and physical ability to affix his signature. We do not think that it is improbable that the testator might lose his consciousness suddenly. In Chalcraft v. Ciles and Rance, 1948 P. 222 a testatrix, who was on her death-bed and given a large dose of morphia, nodded her assent when the will was read over to her but before she could complete three or four letters of her signature. It was held by Willmer J. that although the deceased was losing her faculties at the time of attestation, she should be deemed to be mentally present to a sufficient degree to bring the case within the Wills Act, 1837. We have no reason to think that the Registrar made an incorrect or false statement. The terms of the certificate have a ring of truth.
It is next contended that the signature of the identifying witnesses were not taken but the explanation to the omission is contained in the endorsement itself. Thirdly, it is contended that the endorsement is in contravention of the standing order 675 of the Madras Registration Manual, which provides that in a case where a person at a the time of the execution of a document was able to sign his name, but owing to any special cause is no longer able to do so his thumb impression may be taken and a deposition explaining the reason for the change should be taken and a reference to the same noted in the endorsement of the document. It is suggested by Mr. Sankara Sastry, that inasmuch as no such deposition was taken, the Standing Order was infringed. That being so, it is argued that the endorsement is not in accordance within law and it cannot be admitted in evidence under Sec. 60 (2) of the Registration Act or Sec. 35 of the Indian Evidence Act. Assuming that the terms of the standing Order 275 aforesaid were nor complied with, we are of opinion that it is a mere irregularity which is certainly curable under Sec.87 of the Act.
(27) It is, then contendsed that even if the endorsement is legally admissible, the probative value of the endorsement is seriously impaired by the non-examination of the Sub-Registrar. Whatever bearing the failure to examine the Sub-Registrar may have on the question of testamentary capacity, for the proof of the admission of execute, we do not think any adverse inference can be drawn from the non-examination of the Sub-Registrar because the endorsement itself is admissible in evidence and the facts recorded therein are presumed to be correct and recorded in conformity with law.
(28) In view of the direct evidence of D. Ws.1,7 and 8 and the admission of execution of the will by the testator as recorded in the certificate of the Sub-Registrar, we hold that Ex. B. 10 contains the signature of the testator and the will was executed by him.
(29) It has been contended by the learned counsel for the respondent that the terms of Ex. B-10 are natural , reasonable and proper and inasmuch as there is cogent evidence of execution, the will should be affirmed without a rigorous scrutiny in accordance with the principle of the decision of Lord Shaw in ILR 36 All 93 at p. 98 (PC). The learned counsel for the appellant fairly concedes that the terms of Ex. B. 10 are natural and reasonable, but he contends that are several suspicious circumstances the cumulative effect of which outweighs the presumption in favour of the will arising from the naturalness and propriety of the dispositions.
(30) Mr. Sankara Sastry, has urged, first, that there are certain instrinsic improbabilities in the terms of the will which press against its genuineness. Secondly, it is urged that Seshagiri Rao could not have had the testamentary capacity to execute the will on 26-2-1942.
(31) We will now take up the argument as to intrinsic improbabilities. It is suggested that the nature of the illness from which Seshagiri Rao was a dying man and actually passed away a few hours after the execution of the will. It seems to us, therefore that the failure to mention the precise disease from which he was suffering is a matter of very little consequences. Secondly, it is urged that the recital in the will that their family had no joint family property in an obvious falsehood, which shows that the will could not have been written on the instructions of Seshagiri Rao. In the will of his father, Ryali Subbarao, marked as Ex. A. 22, there is a reference to a tiled house and site at Ryali which were bequeathed to the two sons equally. Presumably the share of Seshagiri Rao was of very little value, and there is no evidence that Seshagiri Rao ever reduced it to possession. In any case, it is the definite case of the plaintiff in the plaint that seshagiri Rao and he had no joint own earnings. It seems to us, therefore, there is absolutely no force in the suggestion. Thirdly, t is contended that the recital that the properties standing in his wife's name were acquired by her with her stridhanam money & belonged to her only, is in the nature of a special pleading in favour of Ramamma put in designedly to benefit her by those that brought the will into existence and could not have been a statement emerging from Seshagiri Rao himself. We are unable to agree. That Ramamma had a sum of Rs. 5000/- of her own os clear from Ex. A. 22. All the lands in schedule 'A' to the plaint were purchased by her from time to time. Mr Sankara Sastry argues that the theory of presumption of advancement under the English Law is not applicable to India. It is so. But there is no presumption in India that what stands in the name of the wife belongs to the husband. Before any presumption of a resulting trust in favour of the husband is sought to be raised, it must be shown that the husband purchased the properties from his funds in the name of wife. The rule laid down by the Privy Council in Lakshmiah Chetty V. Kohandrama Pillai ILR 48 Mad 605 : (AIR 1925 PC 181) must be limited to cases where the acquisition in the name of the wife is unexplained by either proved or admitted facts.
In this case as stated already Ramamma was possessed of her own funds and the acquisitions were certainly from and out of them. The testator had treated the lands as Ramamma's own property (vide Ex. A. 30 ). We are, therefore of opinion that the learned trial judge was right in holding that the 'A' schedule properties and two items in 'B' schedule were acquired by Ramamma from her own stridhanam moneys. No inference adverse to the genuineness of the will can be drawn fro, this recital which seems to be true and correct.
(32) The next and the most important question is whether the testator had the testamentary capacity to execute the will.
(33) Section 59 of the Indian Succession Act requires that the testator should have a sound mind and the illustrations 1d to 3 throw some, light as to the significance of the expression 'sound mind '. The "sound mind" mean that the testator should have his mental faculties in their fullest vigour, but the should have the capacity to understand the nature of his property the memory to remember the relations and persons normally having claims on his property the memory to remember the relation and persons normally having claims on his bounty and also a judgment of his own in making the dispositions. As observed by Mookerjee J., in Sarasindunath Ray Chowdhury v. Sudhir Chandre Das ILR 50 Cal 100 at P. 114 : (AIR 1923 Cal 116 at p. 121) "the essence of the matter is that testamentary capacity cannot but be looked upon as a relative thing ; it is to be considered with reference to the particular will the question being, not whether the testator had capacity for will -making, but whether he had capacity to make the disputed will. He may have had capacity to make that will in the circumstances and yet not have had capacity to make a more complex one, or he may not have had capacity to make the will in suit, and yet have had capacity to make a less complex one or different one; whether he understood the particular thing he was doing is the vital question".
(34 -37) The Ex. B - 10 is a brief will and the dispositions contained there in are simple. What ever properties the testator had, subject to a direction as to charity, was given absolutely to the wife. There are no complicated provinces. There is the evidences of D. Ws. 1,7, and 8 that Seshagiri Rao was in a sound and disposing state of mind when he executed the will. The cross examination of these witnesses has been very brief and meagre. No useful answers were elicited that could throw any doubt upon their assertions as to Seshagiri Rao's mental capacity at the time of the execution of the will. Mr. Sankara Sastry, has strongly urged before us that the evidence of D. Ws 1,7, and 8 is not worthy of credence, as they are all interested witnesses. (His Lordship after examining the evidences and circumstances rejected this contention ).
(38) Mr. Sankara Sastry said there were someother suspicious circumstances in the will. It is urged that the scribe has not been examined. When all the three surviving attestors have been examined, the non - examination of the scribe is the matter of very little consequence. (Vide Kristo Gopal V.Baidya Nath, AIR 1939 Cal 87). It is urged that the application for the attendance of the Sub - Registrar has not been produced. We are unable to agree with the counsel that this is a matter of any consequence, because the fact that the Sub - Registrar did come and make the endorsement is beyond dispute.
(39) Mr. Sankara Sastry referred to a decision of the Madras High Court in Sadachi Ammal V. Rajathi, AIR 1940 Mad 315. The facts of that case are entirely different, and in view of the circumstances disclosed there, the suspicion as to mental capacity was not removed clearly. He has also cited a decision of their Lordships of the Supreme Court in Venkatachala Iyengar V. Thimmajamma, . After a review of a large number of decisions, their Lordships, on the facts of that cases found that the propounder had taken a prominent part in the execution of the will and had received substantial benefit, that the dispositions of the will were manifestly unnatural and unfair and that the terms of the will were so argumentative and complicated in character as to suggest as suspicion that the testatrix could not have had the mental faculties to comprehend them The facts of this case are entirely different. The will of Seshagiri Rao is a natural will and in accord with the tenor of his life. He was a childless man. He was apparently devoted to his wife. To whom else could he leave the property except to her? Secondly, the terms of the will are brief. They are neither argumentative, nor complicated. Thirdly none of the attestors or the scribe have had any pecuniary benefit under it. The person who was benefited by it would appear to have taken no part in the execution of the will. We, therefore think that the decision of the Supreme Court also has no application to the facts of this case.
(40) The conduct of the plaintiff has been very significant. He stated that he knew of his brother's will only on 30 - 8 - 1954, when he came to Eluru to claim his reversion. It seems to be an obvious lie. (His Lordship discussed the evidence on this point and proceeded ).
(41) Taking all the circumstances into consideration, the extremely natural and reasonable provisions of the will the testimony of respectable and disinterested persons in regard to the execution of the will and the mental capacity of the testator the conduct of the plaintiff, we have no hesitation in holding that Ex. B - 10 is a true and genuine will executed by Seshagiri Rao in a sound and disposing state of mind and we agree therefore, with the conclusions of the learned trial Judge on issue on 4.
(42) We will now take up the will of Ramamma, marked in the case as Ex. B.1.
(43) The circumstances of the execution of Ex. B - 1 according to defendants 1 to 8 are as follows :Ramamma was living in her house in Satyanarayanapuram Agraharam in Eluru. She took ill four or five months before her death. On 13 th August she came to the house of her sister, Chandramathi the 1st defendant, where mother was also living for rest and treatment. On the 14 th she was examined by Dr. Rajasekhara Rao, D,W.6, in the house of defendants 1 to 8. Dr. Rajasekhara Rao felt that an X - ray photograph of her chest should be taken, and accordingly sent a requisition (Ex. B. 25) to the X - ray Clinic. Ramamma's chest was X - rayed and a photograph on the 17th. The X - ray report prepared by Dr.Kutumba Rao, showed that she was suffering from advanced bilateral pulmonary T.B. Dr. Rajasekhara Rao continued to treat her by giving her medicines and also injections. On the Wednesday preceding her death (presumably the 18th) Ajjarapu Lakshminarayana D. W. 13, the natural brother of D. W.1 visited Ramamma and she expressed a desire to execute a will. On the 20th, D. W. 13 went to Ramamma again and she asked him to write a will, but she said he would do so the next day.
On the 21st he went to her in the afternoon and Ramamma took him to the out - house and told him how she proposed to bequeath her propertied. D.W.13 prepared a draft, and the draft of Ramamma's husband's will and a copy of her father in - law's will (Ex.A.22) where given to him for reference. As the will was being written D.W.7 thereafter Edara Venkatarao, and then Surya Prakasarao arrived. Dr. Rajasekhara Rao was the last to arrive. They asked Ramamma as to why they were sent for and she told them that she was executing a will and ask them to attest it. The will was read over to her. She gave her consent to the recitals and affixed her signatures and also affixed her thumb impressions. The execution of the will was completed by 5 -30p.m. It was a penultimate Saturday Ramamma asked that the Sub - Registrar should be brought to her for purposes of registering the will. The next morning D.W.1's son went to get the Sub - Registrar but it was found that the Sub - Registrar was busy in connection with the Vysya conference and by the time the Sub - Registrar could come, Ramamma passed away at 11-45A.M. on Sunday, the 22nd day of August 1954. D.W.1 performed the cremation. The will was subsequently presented for registration and an enquiry was instituted by the Sub - Registrar.
(44) In the will there is a recital that Chandramathi had been looking after her in her difficulties and joys from the tome of the death of her husband and that during the time she was ill for the last five months prior to the execution of the will, Chandramathi and her children were rendering her services and that she has affection for them and for none else. The immovable properties belonging to her in her own right and bequeathed to her absolutely in and by the will of her husband were bequeathed to her sister, Chandarmathi for life and the remainder to all her sons to be divided equally by them and enjoyed with absolute rights. The moveable properties such as, deposits in the banks and the debts due to her from others on mortgages and promissory notes, were bequeathed to the 1st defendant to be enjoyed by her absolutely. There is a further provision that if the 1st defendant should die before realizing all are any of the assets whatever remains of those assets shall pass to her sons with absolute rights.
(45) The first question is did Ramamma execute the will, and secondly did she have the testamentary capacity to do so.
(46) In the plaint it is alleged that Ramamma was suffering from tuberculosis for about a year prior to her death, that on the 20th evening she had high fever and was vomiting blood and became unconscious due to shock , taking advantage of her serious condition the 8th defendant carried her from her house in the Agraharam to his house at the Ramachandraraopet, where she died on 21-8-1954 without executing the will and that defendants 1 to 8 had brought into existence a spurious document with the help of Edara Venkatarao.
(47) One of the main questions in controversy therefore, is as to whether Ramamma came to house of defendants 1 to 8 on the 13th of her own accord for rest and treatment or whether, us contended by the plaintiff, she was carried by the 8th defendant to his house on 20th. This question is of great importance not only us to Ramamma's condition on 21-8-1954, but if the plaintiff's case is proved to be true then the entire case of the defendants and evidence of D. Ws. 4, 6, 7 and 8th should be rejected as false. (His Lordship discussed the evidence and continued). In view of this strong and cogent evidence, we are of opinion that Ramamma came to her sister's house on the 13th and that the story that on the 20th she was vomiting blood and was unconscious due to shock in which condition she was carried away by defendants 1 and 8 to their house has not at all been established.
( 48) We will now take up the question us to whether the signatures in Ex. B. 1 are those Ramamma .
(49) At the foot of pages 1 and 2 and also under the written portion on page 3, there are the signatures of the deceased. Thumb impressions have also been affixed. D. W. 1, D. W. 4, D. W. 6. D. W. 7, D. W. 8 and D. W. 13 have sworn on oath that Ramamma executed the will. No adequate reasons have been urged us to why their evidence should nor the believed expect a general allegation that the attestors were the henchman of Eldara Venakatrao. It is true that the writing of the signatures is in a shaky hand. But that can only be expected of a person in the state of health that Ramamma was on 21-8-1954. Nor can, in our opinion, any importance need be attached to the absence of the word 'Vralu' at the end of the signatures.
(50) In support of the contention that those signatures are forgeries reliance is placed upon the opinion of a private hand-writing expert one Mr. U. Kashyap. According to his opinion which is marked as Ex. A. 20, the thumb impression purporting to be those of Ramamma are genuine, but the signatures are traced forgeries. The expert was examined us P. W. 1. We are of opinion that the learned trail judge was right in not placing any reliance upon the expert's opinion in view of the direct evidence that Ramamma affixed her signatures to the document. The opinion of the hand-writing expert is, no doubt admissible under S. 45 of the Indian Evidence Act. What value is to be attached to that opinion in a given case is however an entirely different matter. It has been repeatedly held that expert's opinion with respect to the hand-writing must always be received with great caution. In re Venkata Row, ILR 36 Mad 159 at p. 165 Sundara Ayyar J. had extracted the following passage from Dr. Lawson's work on the 'Law of Expert and Opinion Evidence'.
"The evidence of the genuineness of the signature based upon the comparison of hand-writing and of the opinion of experts is entitles to proper consideration and weight. It must be confessed, however, that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in the opinion experienced laymen and unite with the members of the legal profession. Of all times of evidence admitted in a Court this is the most unsatisfactory."
Sundara Ayyar J. observed that perhaps the above passage was in too depreciatory terms of the value of the expert of evidence . He held, however. that accused should not ordinarily be convicted of forgery upon the uncorrovorated testimony of the hand-writing expert. In Hari Singh v. Sardarni Lachmi Devi, AIR 1921 Lah 126, a Bench of the Lahore High Court consisting of Shadilal C. J. and Leslie Jones J. cited with approval a passage from Ryan on Criminal Evidence in British India, which is as follows:
"It must be borne in mind that an expert witness however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interest".
There certainly may be, and perhaps are cases where the handwriting expert's opinion may be of assistance to the Court in coming to a conclusion as to the genuineness of disputed handwriting. But it must be remembered that the art of forming opinion by comparison of handwriting is essentially empirical in character, and error in seldom inseparable from such opinions. In any case, where there is direct and trustworthy evidence of persons who had actually seen the signing of the document by the testatrix, it is not necessary to refer to or rely on the expert opinion (Vide Newton v. Ricketts, (1861) 9 H. L. 262). In this case there is the direct evidence of Ramamma affixing her signatures and thumb impression to Ex. B - 1. Even ignoring the evidence of D. W. 1 who may be said to be interested because his wife and his sons are the beneficiaries under the will there is the clear evidence of four attestors. D. Ws. 4,6,7 and 8 and the scribe, D. W. 13 that Ramamma affixed her signature and thumb impressions to the will in their presence. The trial court believed there testimony in preference to the handwriting expert's opinion. We agree with that finding and hold that it has been proved that Ramamma affixed her signatures and thumb impressions to Ex. B-1.
(51 -54) It now remains to consider the question of her testamentary capacity. (His Lordship examined the evidence of D. W. 1, Dr. Rajasekhara, who treated the testatrix and proceeded.) (55) The learned counsel for the appellant places strong reliance on the evidence of P. W. 6 as a counterblast to the testimony of D. W. 6 on the X - ray picture and the report thereon. He states that the whole of the right lung and upper portion of left lung where involved,and gave it as his opinion that since the patient was extremely emaciated with the involvement of both the lungs, she may not have been in a fit condition to understand the implications of a will. We are far from being impressed with evidence of this sort. P. W. 6 never examined Ramamma. He never treated her. His opinion cannot prevail over the evidence of a doctor of unimpeachable respectability who has actually treated her and in whose presence Ramamma executed the will.
(56) In ILR 39 Cal 245 at p. 257 speaking of a medical witness who gave evidence has counter to the doctors who had been in regular attendance, Jenkins C. J. observed :
"He comes before the Court as an expert pure and simple and without discussing the argument as to the characteristics of this type of remunerated witnesses or determining how far he is merely to be regarded as a man who is paid a retainer to make a sworn argument. It is impossible to get away from the fact that he labours under a disadvantages to which his medical brethren, if the difference of schools permits this description , were not subject. They saw the patient; he did not."
In the instant case we cannot place any reliance whatever upon the evidence of P. W. 6. Further, he has admitted in the cross - examination that he saw Ramamma sitting at the back door of her house three days prior to her death. If she was able to sit at the back door of her house, it is not likely that she was desperately ill in body and so unfeebled in mind as not to have been able to execute the will on 21-8-1954. We have no reason to reject the testimony of D. W. 6, which confirms the evidence of D. Ws. 1, 4, 7 and 8.We, therefore hold that Ramamma had the necessary testamentary capacity.
(57) It is then contended that the will contains manifestly unnatural recitals because there is no reference to the aged mother of Ramamma, or to her brother's children, or to the plaintiff. (After discussing this aspect of the case Lordship continued). We cannot, therefore, hold that the omission to mention the mother, the brothers, children or the plaintiff, is so unnatural as to throw serious suspicion about the genuineness of the will.
(58-61) (His Lordship dealt with some more objections and proceeded ).
(62) It is also suggested that the non - registration of the will is a very material circumstance against its truth and the explanation offered for non-registration is palpably false. It is elementary that will is not one of the instruments that should be registered compulsorily. The explanation given by D. W. 1 was that the day on which the will was drafted was a penultimate Saturday and the next day was Sunday and before the Sub-Registrar could be brought Ramamma passed away. There is no reason to reject the explanation . In AIR 1949 PC 325 in similar circumstances when on account of an intervening Sunday a will could not be registered their Lordships declined to draw an inference adverse to the probability of the will, because of the omission to register it.
(63) An allegation had been made in the plaint that Ex. B-1was the result of undue influence and issue 6 deals directly with that question. Some attempt was made to show that Ramamma was kept in an out house where cattle used to tether obviously for the purpose of showing that she was being made the victim of force and pressure. That suggestion was made to D.W. 6. He denied he saw cows where Ramamma was. Further the plea as to undue influence is wholly inconsistent with the case that the will was a forged one. In any case the onus of proving undue influence is upon the persons making such an allegation and mere presence of motive and opportunity are not enough (vide Bur Singh v. Uttam Singh, ILR 38 Cal 355 (PC). The learned Judge held that the plea of undue influence had not been made out and we agree with him.
(64) If the appellant's case is to be accepted it means that not Venkatarao, but D. Ws. 1,4,6,7 and 13 were participants in a huge fraud in concocting wills and trying to sustain them by perjured evidence. In Govind Prasad v. Bala Kumar, AIR 1934 PC 12,the Privy Council observed that a court is not entitled to attribute to the witness to do so. The terms of Ramamma's will (Ex.B. 1) are reasonable natural and proper. Its execution and attestation have been proved by disinterested and respectable attesting witness, who have no pecuniary benefit either directly or indirectly in the dispositions made by the testatrix . It is easy to suggest suspicions and improbabilities. But the improbabilities must be, as observed by Lord Watson in Chotey Narain Singh v. Ratan Koer, ILR 22 Cal 519 (PC),clear and cogent and must approach very nearly to, if they do not altogether constitute an impossibility. The signing of the will by Ramamma the attestation thereon by the attesting witnesses and her testamentary capacity at the time of execution of the will have all been established by clear and cogent evidence, the principal testimony of which is that of D. W. 6. which we have no reason whatever to doubt. We therefore, hold agreeing with the trial court that Ex. B.1 is a true and valid will.
(65) In the view we have taken that the will of Seshagiri Rao (Ex. B. 10) was true and genuine will and that Ramamma had absolute estate not only in her stridhanam properties which already belonged to her but also such of the properties that were devised in her favour by her husband, the question has to whether Ramamma had the legal capacity to make a testamentary disposition, she being a limited owner, therefore does not arise.
(66) No other questions have been urged before us.
(67) In the result, we affirm the decision of the learned sub ordinate Judge and dismiss the appeal with costs of respondents 1 to 7.
(68) Appeal dismissed.
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