A. Ramesh vs A. Manohar Prasad and Others

S. Thangaraj, J.—The petitioner/plaintiff has filed this petition/plaint for grant of Letters of Administration.

The main averments found in the plaint are as follows :

Varaprasada Rao alias L.V. Prasad was ordinarily residing at No. 288, T.T.K. Road, Alwarpet, Madras 18 before and at the time of death on

22-6-1994. During his lifetime Varaprasada Rao executed his last will and testament dated 27-9-1990 in the presence of Nandagopal and Kasturi

Rangan at No. 8, Vijayaraghava Road, T. Nagar, Madras 17. The will was in the custody of Nandagopal one of the attesting witnesses. After his

death, Nandagopal forwarded a copy of the Will to the petitioner/plaintiff. On a citation taken by the petitioner/plaintiff, Nandagopal lodged the

original Will in the Court. Varaprasada Rao has bequeathed certain properties in favour of the petitioner and therefore he has filed this

petition/plaint for grant of Letters of Administration on the said Will dated 27-9-1990.

A caveat was filed by the caveators and thereafter O.P. No. 505/1995 was converted into T.O.S. No. 45/1996.

The main averments found in the written statement filed by the 1st/2nd defendants are as follows :

L.V. Prasad had two sons (1) Anand Rao and (2) A, Ramesh the plaintiff herein and one daughter Gruhalakshmi the 7th defendant herein. Anand

Rao pre-deceased his father and the first defendant is the son of Anand Rao. L.V. Prasad was not residing continuously at door No. 288, TTK

Road, Alwarpet, Madras 18. Earlier, L.V. Prasad was staying in Bombay with his wife, who died on 17-3-1989. After the death of his wife, L.V.

Prasad settled at Madras with his daughter 7th defendant herein. On 24-12-1989 L.V. Prasad had a fracture in his hip and he was admitted in

Vijaya Hospital, Vadapalani and underwent two operations. Till August 1992 he was in and out of the said hospital and during that period he was

unable to walk and had to be assisted by another person. In August 1992 he admitted in Apollo Hospital, Madras, and thereafter the plaintiff was

looking after him. L.V. Prasad died on 22-6-1994 at the age of 86. Long earlier due to the fact of the injury and the frequent admission in the

hospitals he had lost most of his senses and capacity to think independently and coherently. L.V. Prasad did not execute any Will nor could have

executed any Will in a sound and disposing state of mind on 27-7-1990. The signature of L.V. Prasad in the alleged Will is not admitted as he

used to sign ''L.V. Prasad'' and not as ''A. Varaprasada Rao''. Due to his physical condition, he could not have proceeded to No. 8,

Vijayaraghava Road, T. Nagar, Madras 17, to execute the said Will. He had special affection and trust on his daughter and the first defendant. If

he had any desire of executing a Will, he would have taken the assistance of his daughter instead of Nandagopal. Nandagopal is an obliging friend

of the plaintiff and the other attesting witnesses Kasturi Rangan is an employee of Nandagopal. They would certainly helped the petitioner to get up

a Will as if executed by L.V. Prasad.

The main averments found in the written statement filed by the 7th defendant are as follows ;

L.V. Prasad was continuously staying with the 7th defendant from 1989 to the end of 1992. Towards the end of December 1989 he had a hip

injury and on account of that he was hospitalised and had lost the power of recognising persons and he could not talk coherently. He was not

keeping good health long earlier and his conditions became much worse after his hip injury. He had treatment in Vijaya Hospital for the hip injury

and in or about 1993 he was shifted to Apollo hospital and since then he lost all his senses and could not recognise any of his relations. L.V.

Prasad had a desire to give the lands at Manapakkam to the 7th defendant and on many occasions he told her to maintain the gardens at

Manapukkam lands where he and his wife would be cremated.

On seeing the xerox copy of the alleged Will, the 7th defendant shocked that it was not the intention and will of L.V. Prasad. The alleged Will

could not have been true and genuine reflecting the intention of L.V. Prasad. As the alleged Will raises serious doubts and suspicions, it is not

genuine. The Will could not have been executed in the manner claimed by the plaintiff.

The following issue was framed for trial :

(1) Is the will and testament dated 27-9-1990 of Late A. Varaprasada Rao alias L.V. Prasad true and valid and while executed, was in sound and

disposing stale of mind ?

Issue No. 1 :

Agneni Lakshmi Varaprasada Rao alias L.V. Prasad married Manoharamma and got three children viz. Anand Rao, Ramesh (Plaintiff) and

Gruhalakshmi (7th Defendant). Anand Rao married one Indira (10th defendant) and had three children viz. Ravi Shankar Prasad (8th defendant),

Manohar Prasad (1st defendant) and Manorama (9th defendant), Anand Rao, who died on 3-7-83, pre-deceased his parents. Ramesh the plaintiff

is married to one Vijayalakshmi (2nd defendand) and defendants 3 to 6 are their children. Gruhalakshmi (7th defendant) is married to one

R.V.M.K. Prasad and the couple have two children. Manorama died on 12-3-1989 and Varaprasada Rao alias L.V. Prasad died on 22-6-1994.

The petitioner/plaintiff has filed this suit for grant of letters of administration in his favour on the basis of the Will executed by A. Varaprasada Rao

on 27-9-1990. Among the ten defendants, the 1st and 7th defendants have filed separate written statements and they questioned the validity and

the genuineness of the will dated 27-9-1990 marked as Ex. P. I and also the suspicious circumstances which would go to show that no such Will

could have been executed by Varaprasada Rao as alleged by the plaintiff. Though, elaborate and time consuming, arguments have been advanced

on the side of the parties, the question to be decided should be restricted to the issue framed in this case.

Lakshmi Varaprasada Rao alias L.V. Prasad was a veteran actor, director and film producer in the Indian cinema industry. He was awarded with

Dada Saheb Phalke Award, which would go to show the eminent status he held in the cinema industry. Varaprasada Rao during his lifetime had

earned sufficiently and he had left his self-acquisitions at the time of his death. The plaintiff has filed the suit for grant of letters of administration on

the basis of the Will dated 27-9-1990. The defendants have denied the genuineness and the valid execution of the Will and had stated many

suspicious circumstances which would go against the validity of the said Will.

Section 63 of the Indian Succession Act says -

Execution of unprivileged wills.-- Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so

employed or engaged, or a mariner at sea, shall execute his will according to the following rules :

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended

thereby to give effect to the writing as a Will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other

person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his

signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall

not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Sub-sections (a) and (b) deal with the signature or mark of the testator, or the signature of the person signing for him, and Sub-section (c) deals

with the attestation by two or more witnesses and the mode of attestation.

Section 68 of the Indian Evidence Act says that if a document is required by law to be attested, it shall not be used as evidence until one of the

attesting witnesses has been called for the purpose of proving its execution, and in the case of the Will such examination of one of such attesting

witnesses is absolutely necessary.

Section 3 of the Transfer of Property Act defines ''attestation'' under the expression attested as under :

''attested'', in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has

seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of

the executant, or has received from the executant a personal acknowledgement of his signature or mark or of the signature of such other person,

and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses

shall have been present at the same time, and no particular form of attestation shall be necessary.

Therefore, to prove the valid execution and attestation of the Will the above requirement as laid down should be fulfilled as per law.

Ex. P.1 is the Original Will dated 27-9-1990. The Will was executed by Varaprasada Rao in the presence of P.W. 1 Nandhagopal and one

Kasthuri Rangan. Earlier, Varaprasada Rao had executed three Wills and in Ex. P. 1 he has clearly stated that he has revoked all his previous

Wills. P.W. 1 Nandhagopal is a Chartered Accountant for Brahmiah and Company and also a senior partner in that company. P.W. 1 was closely

associated with Varaprasada Rao. The other attesting witness Kasthuri Rangan is a Chartered Accountant and internal Auditor of Prasad

Production Limited a company wherein Varaprasada Rao was the major share-holder. P.W. 1 has stated that he drafted the Will to the narration

of Varaprasada Rao. For the execution of the Will, Varaprasada Rao went to the residence of P.W. 1 at No. 8, Vijayaraghavachari Road,

Madras 17, where the Will was prepared in the presence of Varaprasada Rao and signed by him. P.W. 1 has deposed that at the time of

execution of the Will the mental status of the executor was alright and he was in a sound disposing state of mind. Kasthuri Rangan was not

examined to speak about the valid execution and attestation of the Will and the proof of those facts depends on the evidence of P.W. 1. P.W. 1

has stated that he was the auditor of Varaprasada Rao and also the company and he had prepared the earlier Wills of 1979 and 1985. The fact of

the execution of the present Will Ex. P. 1 was not known to anyone else except P.W. 1 and Kasthurirangan and of course the executor. As the

proof of the Will depends only on the evidence of P.W. I, we have to scrutinise his evidence in proper perspective. It was argued on the side of

the defendants that P.W. I is a close associate of P.W. 2 the plaintiff herein and only to help the plaintiff he has come forward with this deposition

by producing the Will fabricated by the plaintiff with the help of P.W. 1. No doubt, P.W. 1 has admitted that for the past 35 years he knows the

plaintiff and the said association was possible since P.W. 1 was the Auditor of Varaprasada Rao and the plaintiff being the son of Varaprasada

Rao and the person managing the company along with others had every opportunity to move with P.W. 1 and in that connection P.W. 1 had every

opportunity to move with the plaintiff. The defendants also had such opportunity to move with P.W. 1 and when we consider the evidence in

proper perspective, it cannot be said that P.W. 1 with a view to help the plaintiff has come forward with false evidence after fabricating Ex. P. 1.

There is nothing on record to show that P.W. 1 had such interest on the plaintiff and that he had reasons to act against the defendants and to

support the plaintiff. P.W. 1 knew the love and affection which Varaprasada Rao had to his children and grand-children. In such circumstances he

had no reason to act in favour of the plaintiff and against the defendants. The very fact that the earlier Two wills of Varaprasada Rao were also

drafted by P.W. 1 and were kept in his custody would further confirm that this Will has also drafted by P.W. 1 instructed by Varaprasada Rao.

It was argued on the side of the 3rd defendant that the evidence of P.W. 1 is quite insufficient and from his evidence it cannot be said that the Will

was properly executed by Varaprasada Rao and attested by P.W. 1 and Kasthurirangan. P.W. 1 in his evidence has stated that on the instructions

of Varaprasada Rao he prepared the Will Ex. P. 1 and Varaprasada Rao come to the residence of P.W. 1 at No. 8, Vijayaragavachariar Road,

Madras 17 and executed the Will by signing each and every page. He has further stated that the mental status of the testator at the time of the

execution was alright and he had a sound and disposing state of mind at that time. He has witnessesed the testator signing the Will and thereafter he

has signed as a witnesses in the said Will. Kasthurirangan has also attested the Will. At this stage, it was argued that P.W. 1 did not say that the

testator executed the Will consciously and he had seen the witnesses attesting the Will. However, from the evidence of P.W. 3 we cannot construe

any other meaning than P.W. 1 we cannot construe any other meaning than P.W. 1 and Kasthurirangan had seen the testator signing each and

every page of the Will and in-turn the testator had seen P.W. 1 and Kasthurirangan attesting the Will. As the Will was drafted under the

instructions of the testator and the original will prepared by P.W. 1, was signed by the testator in each and every page, the same would prove the

conscious execution. P.W. 1 and Kasthurirangan were known to the testator for a very longtime and it was nothing but natural that the testator

would have requested them to be present when he executed the Will and asked them to sign as witnesses. Therefore the conscious execution and

the requirements of law u/s 63 of the Indian Succession Act, Section 68 of the Indian Evidence Act coupled with Section 3 of the Transfer of

Property Act stated supra have been satisfied by the testator and the two attesting witnesses.

In H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, the Supreme Court held-

As in the case of proof of other documents so in the case of proof of will it would be idle to expect proof with mathematical certainty. The test to

be applied would be the usual test of the satisfaction of the prudent mind in such matters.

However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of

the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is

his will or not; and this aspect naturally introduces and element of solemnity in the decision of the question as to whether the document propounded

is proved to be the last will and testament of the departed testator.

The propounder has to satisfy that the Will was executed to the satisfaction of the prudent mind and an element of solemnity should be present in

the proof that it was last will and testament of the testator.

In Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, the

Supreme Court held-

The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation

prescribed in the case of a Will by S. 63 of the Indian Succession Act.

In M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, the Supreme Court while considering the meaning of the word

attestation"" in Section 3 of Transfer of Property Act held-

To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation u/s 3 are : (1) two or more witnesses have seen the

executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to

this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo

attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him"" a personal acknowledgment of his

signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering

officer, he is not an attesting witness.

This decision emphasises the essential requirement that the witness should have put his signature animo attestandi and not for any other purpose.

This Court in Venugopal Reddiar (died) and Others Vs. Gopalsami Reddiar and Another, held-

A reading of Section 63(c) of the Indian Succession Act with Section 68 of the Evidence Act establishes that a person propounding a will has to

prove the will was duly and validly executed and that should be done by not merely establishing that the signature on the will was that of the

testator, but also that the attestations were made in the manner contemplated by Clause (c) of Section 63 of the Indian Succession Act. It is true

that it is not necessary u/s 68 of the Evidence Act to examine both or all the attesting witnesses. However, it does not follow that if one attestor

proves that the testator had acknowledged his signature to him it is not necessary that the acknowledgement by the testator before the other

attesting witness need be proved. In cases where two attesting witnesses had signed in the presence of each other, it is not necessary to examine

both to prove that they had received the acknowledgement from the testator, but if the attestations are not made at the same time, it is necessary to

prove that the attestators had signed so on the acknowledgement of the testator.

This decision speaks about the mode of attestation and also the proof required for valid attestation.

In Kashibai and Another Vs. Parwatibai and Others, . Their Lordships of the Supreme Court held-

A reading of Section 68 will show that ''attestation'' and ''execution'' are two different acts one following the other. There can be no valid

execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not

proved, the facts of execution is of no avail .....Law does not emphasise that the witness must use the language of the section to prove the requisite

merits thereof but it is also not permissible to assume something which is required by law to be specifically proved.

Therefore attestation and execution are two different acts and without the proof of due attestation the fact of execution cannot be proved validly.

This Court in Kannamaml Vs. Chinnaponnammal, held-

One of the legal requirements is, that each of the witnesses shall sign in the presence of the testator. Even if the testator signed in their presence,

the attestation is not complete unless and until the attestators also sign in the presence of the testator and the testator has seen the attestators signing

the document.

From all these decisions it is clear that the attestation and execution are two different acts and as far as the Will is concerned, unless the valid

attestation is proved, the execution cannot be said to be valid. For a valid attestation, two or more attestors should have seen the testator executing

the Will and each one of them should have affixed their signature in the presence of the testator and testator must see each one of them signing the

document as attesting witnesses. To prove the valid attestation, all the attestators need not be examined provided the evidence of one attestator is

sufficient enough to prove the valid attestation and execution of the Will the other attesting witness need not be examined. The witness so examined

to speak about the attestation should depose the valid attestation and execution and for such proof it is not necessary that the witness must use the

language of the section and at the same time he must speak the basic requirements, but for which there cannot be any valid attestation.

Before coming to the conclusion, it is better to look into the various objections raised by the defendants.

The defendants have raised various objections regarding the execution and attestation of the Will (Ex. P. 1). In the written statements filed by the

defendants they have raised various suspicious circumstances supporting the valid execution and genuineness of the Will, Ex. P. 1.

(1) The signature found in the Will was disputed as the testator used to sign as ''L.V. Prasad''.

(2) The testator was staying with his daughter and the was not staying with the plaintiff as stated in the Will.

(3) On 23-12-1989 the testator had a fracture in the hip and was admitted in Vijaya Hospital, underwent two operations and he was continuing

the treatment up to August 1992 both as in-patient and out-patient and during that period he lost all power of recognising persons and could not

talk coherently.

(4) On the date of execution i.e. on 27-9-1990, he was not in a sound and disposing state of mind to make a disposition of his properties under

the Will.

(5) In his physical condition, he could not have to proceed to No. 8, Vijayaragavachariar Road from the place of his residence to execute Ex. P.1.

(6) The testator had no reason to keep the execution of the Will in secret and to leave the original will with Nandagopal without informing anyone

of his family members.

(7) The contents of the Will are artificial and unnatural.

(8) The testator had a desire to give Manapakkam lands to his only daughter the 7th defendant herein, but in the Will it was given to the defendants

1 and 2.

(9) As per the wish of the testator Prasad Production should be for the benefit of the entire family and none should get additional advantage or

exclusive control of the said company. But the contents regarding the said company in the alleged Will raises serious doubts and suspicions

regarding the genuineness of the Will.

The full name of the testator Agneni Lakshmi Varaprasada Rao was seldom used by him. The testator had signed either as A. Varaprasada Rao

or L.V. Prasad. When we go through the various documents, it is clear that he has signed both as A. Varaprasada Rao and L.V. Prasad. In the

Will he has signed as ""A. Varaprasada Rao"" which was much disputed by the defendants herein saying that the testator would never sign as A.

Varaprasada Rao and he used to sign only as L.V. Prasad and therefore the Will is fabricated by the plaintiff. Exs. P. 1, P.6, P. 21, P.25, P.26,

P.28, P.43 and P.46 would go to show that he had signed as A. Varaprasada Rao. In Exs. P.2 and P.3, etc. he has signed L.V. Prasad alias A.

Varaprasada Rao. In Exs. P. 8, P. 11, P.22 and P.29 he has signed as L.V. Prasad. In Ex. P.29 it has been typed as A. Varaprasada Rao, but he

has signed as L.V. Prasad and it is mostly found that as Managing Director to Prasad Production he had signed as L.V. Prasad and in his personal

matters he had signed as A. Varaprasada Rao. Therefore, the arguments on the side of the defendants that the testator used to sign only as L.V.

Prasad and that he would not have signed as A. Varaprasada Rao and therefore the signature found in Ex. P. 1 is not that of the testator, cannot

be accepted. It was also argued on the side of the 7th defendant that the signature found in Ex. P.1 as ""A. Varaprasada Rao"" is looking like printed

letters and therefore it is artificial. Similar signatures are found in other documents like Exs. P.6, P.21 to P.28 where he has signed as ""A.

Varaprasada Rao"" and as such the said argument does not attract our consideration. One more reason assigned by the 7th defendant was that in

Ex. P.2, first page, the signature of the testator was found, whereas in the xerox copy it is not there and therefore the said document has been

fabricated by the plaintiff herein, however, the signature is found in the second page. It is more serious, if the signature is not found in the original

and found in the xerox copy. When original is available in the Court, we need not give much credence to the xerox copy and the subject matter of

the suit is Ex. P. 1 Will and not Ex. P.2 and therefore this argument does not create any doubt in the mind of the Court regarding the validity of Ex.

P. 1. As such the entire arguments advanced on the side of the defendants that the signature of the testator found in Ex. P. 1 is not that of his,

cannot be accepted.

The defendants have raised various suspicious circumstances surrounding the valid execution of the Will.

In Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, the Apex Court explained the meaning of the word ""suspicious"" in

the following words-

Needless to say that any and every circumstances is not a ""suspicious"" circumstance. A circumstance would be ""suspicious"" when it is not normal

or is not normally expected in a normal situation or is not expected of a normal person.

Bearing the above explanation in mind, we have to analyse the various suspicious circumstances alleged by the defendants. It was argued on the

side of the defendants that after the death of his wife Manoharamma on 12-3-1989 the testator lived with his daughter Gruhalakshmi the 7th

defendant herein in her house and the averments in the petition that the testator was ordinarily a resident of Madras and was residing at No. 288,

TTK Road, Alwarpet, Chennai 18 before and at the time of his death on 22-6-1994 is false and if really the Will was executed by the testator

himself, he would not have stated the said address and on the contrary he would have stated the address of his daughter at No. 22, 1st Avenue,

Sastri Nagar, Chennai 20. In the Will, marked as Ex. P. 1, the testator has stated his address at No. 60, 3rd Main Road, Gandhi Nagar, Chennai

20 and the said property was bequeathed in favour of Ravi Shankar Prasad and Manohar Prasad the sons of his pre-deceased son Anand Rao.

We are more concerned with what is stated in Ex. P.1. Will and not where the testator ordinarily resided or was living at the time of execution of

the Will. The testator had stated his address at No. 60, 3rd Main Road, Gandhi Nagar, Adyar, Chennai 20 and admittedly the said house was

owned by the testator at the time of execution of the Will. Merely by showing the averments in the petition regarding the address, it cannot be said

that the Will was not executed by him, especially when the testator has not stated the TTK Road address and whereas he has stated the address of

his own house in the said Will.

It was also contended that on the alleged date of execution of Will is on 27-9-90 he was not in sound and disposing state of mind to make any

disposition of his properties under the Will. It is the admitted case of all that the testator fell down and sustained a fracture in the hip on 23-12-

1989. P.W. 3 Dr. Sathyakumar who was his personal physician has deposed that on 23-12-1989 he received a telephonic message from the

house of the testator''s daughter saying that he fell down while climbing the steps and the testator''s granddaughter gave him an account of the

symptoms of the injury and from such symptoms P.W. 3 concluded that the testator had a fracture. When X-ray was taken, it confirmed the

fracture and P.W. 3--instructed them to admit the testator in Vijaya Hospital for the purpose of operation on the hip by Dr. Mohandas. The

testator was operated on the Christmas Day (25-12-1989). He was in Vijaya Hospital for sometime after the operation. P.W. 3, who was

attached to Apollo Hospital, could not give the exact period he was convalescing in Vijaya Hospital and the other witnesses examined on the side

of the plaintiff and defendants have given their own accounts regarding the period he was an in-patient in Vijaya Hospital. The written statement

filed by D. 1 and D.2 is to the effect that after the operation on 25-12-1989 the testator was under going treatment both as in and out patient for

nearly a year. D. W. I Ravi Shankar Prasad 8th defendant has stated that his grandfather (the testator) did not attend to the Office of the company

after 1989. He has admitted in his cross-examination that after his grand-father had a hip fracture in December, 1989, he never stayed with him.

From the answer given by D.W. 1 it is clear that since he never stayed with grand-father after December 1989, he had no personal knowledge

about his grandfather''s mental and physical conditions and his evidence cannot be accepted in so far as the mental and physical conditions of the

testator after December 1989. One Lakshmanan was examined as D.W. 2 and he had stated that he was a personal attendant of the testator since

1959 attending to his personal comforts. His evidence is contrary to the evidence of D.W. 1 when he had deposed that up to 1990-91 L.V.

Prasad was regularly attending the Office. Further, part of his evidence is also quite contrary to his earlier part when he had stated that for his hip

injury the testator was admitted in Vijaya Hospital and he was there for more than a year and during that period he visited him thrice and when his

personal attendant Palraj told his name and the testator asked to who he was. The evidence of D.W. 2 was challenged by the plaintiff that his name

never found a place in any of the documents and neither it was stated in the written statement that he knew the health condition of the testator.

There is no proof that he had visited the testator in Vijaya Hospital during the relevant period and the testator was unable to recognise him as his

health was bad and he had lost his memory. Even from the evidence of D.W. 2 Lakshmanan it is clear, he left the testator long back and joined the

other companies run by his family members and one Palraj was the personal attendant of the testator during the relevant period. If Palraj was

examined to speak about the mental and physical conditions of the testator at the time of execution of the Will, his evidence would have been more

probable than the evidence of D.W. 2, who was not the attendant of the testator at the relevant time. From the evidence available on record, the

two witnesses examined on the side of the defendants to speak about the mental and physical conditions of Varaprasada Rao at the relevant time

of execution of the Will on 27-9-1990 is not convincing or acceptable. Any amount of evidence without a plea cannot be taken as proof and at the

same time any amount of plea without proper evidence to substantiate the said plea cannot be also taken as proof. P. Ws. 1 and 2 have clearly

stated that during the relevant period the testator was in sound and disposing state of mind. The defendants have raised a definite plea that at the

time of execution of the Will, the testator was in Vijaya Hospital under going treatment both as in and out patient and there was no chance of going

to the house of P.W. 1 and to execute the Will after knowing the contents of the same. The defendants have not let in proper evidence to

substantiate the said suspicious circumstances surrounding the execution of the Will. However, it is the duty of the plaintiff to prove the valid

execution and the genuineness of the Will. We will consider that aspect of the case at the relevant stage. Suffice to state that the defendants have

not substantiated their plea that at the time of the execution of the Will on 27-9-1990 the testator was under going treatment in Vijaya Hospital and

was not having disposing state of mind and health on the said date.

It was contended on the side of the defendants that since the testator was under going treatment for the fracture in the hip, and as the said

treatment continued for more than a year, he would not have gone to the house of P.W. 1 at No. 8, Vijayaragavan Road, T. Nagar, Chennai, for

the purpose of execution of the Will. As stated in the earlier paragraphs, the contention of the defendants that the testator was undergoing

treatment for hip injury and as such he was unable to move, has not been substantiated. Unless it is shown that the health condition of the testator

was so bad that he was unable to move freely to visit No. 8, Vijayaraghavan Road, Madras, 17, we cannot accept the mere suggestion. Even to

bring any suspicion regarding the visit of the testator to the house of P.W. 1 at No. 8, Vijayaraghavan Road, Chennai 17, it has to be proved that

his health condition was so bad that he was unable to move from out of his house at the relevant time and no such evidence was forth coming on

the side of the defendants. The plaintiff was not present at the time of execution of the Will and he has not taken any active participation in the

execution of the Will. The fact of execution came to the knowledge of the plaintiff only when P.W.1 had sent Exs. P.9 and P. 10 letters along with

the copy of the Will Ex. P. 1. P.W. 1 had seen the testator coming to his house on 27-9-1990 and he had deposed that the testator gave him

instructions for the preparation of the draft Will for which the testator had visited his house earlier. P.W. 1 had drafted the earlier Wills of the

testator and he had been associated with the testator since the inception of Prasad Productions Pvt. Ltd. in the year 1956. He has been an Auditor

for all family members of the to stalor and there is no valid ground to disbelieve his evidence on the ground that he has supported the plaintiff in his

desire to fabricate the Will in order to achieve his ends. As already stated even the plaintiff came to know the existence of the Will only on the

receipt of the letter from P.W. 1 and there is no evidence to show that the fact of execution of the Will was known to the plaintiff earlier to the

receipt of the said letter. As the defendants have failed to substantiate their contention, that the physical condition of the testator was so bad that he

could not have visited the house of P.W. 1 for the purpose of execution of the Will, it has to be held that the defendants have not proved the said

suspicious circumstances.

It was argued on the side of the defendants that the testator who had equal love and affection for all his children and grand-children had no

valid reason to kept the execution of the Will in secret and also to leave the original Will with Nandha Gopal without informing any of his family

members. No doubt, the evidence available on record would go to show that the testator had love and affection for all his children and grand-

children and for his son-in-law. The evidence shows that in 1956 he had started Prasad Production Pvt. Ltd. along with his first son Anand Rao

who later due to many reasons and lived separately with his family members and after his death the testator gave his house to the widow of his pre-

deceased son the 10th defendant herein and their children i.e. defendants 1, 8 and 9, and had left for Bombay along with his wife Manoharamma.

He had also seen that the children of his pre-deceased son are well settled in life. D.W. 1 had also admitted that the grandparents especially his

grand-mother had taken care of their education and maintenance. When they finished their education they were taken as shareholders in the

company. Similar affection was shown by the testator to his only daughter Gruhalakshmi and also her husband Mr. R.V.M.K. Prasad and their

two children Srinath and Madhavi. The testator also helped his son-in-law in running a factory. Even during his lifetime he had taken care of his

second son Ramesh, who joined the company of his father and was managing the same. There cannot be any two opinions that the testator had

treated his children and grand-children with love and affection. How- ever, the said love and affection cannot be take as a ground to bring any

suspicion regarding the execution of the Will. While considering the suspicious circumstances stated by the defendants, it was not the first time that

the testator had executed the Will and in fact Ex. P. I is his fourth and last will and he had also executed Exs. P.2, P.3 and P.6 Wills. The earlier

Wills also drafted by P.W. 1 Nandha Gopal. At the time of execution of Ex. P. 1, the testator could have felt that the fact of execution of the Will

should not be known to the person concerned till his death. The various circumstances show that by that time the testator had understood his family

members and in order to fulfil his intention in executing the Will he must have thought fit not to divulge the fact of execution of the Will to anyone till

it is known to them in due course. As already stated P.W. 1 Nandha Gopal ,was known to the testator as his Auditor since 1956 and he had

entrusted his Income Tax and other allied matters to him and it is clear that the testator had believed P.W. 1 and due to his long association with

him and he must have felt that as an Auditor of the entire family he was the suitable person to have the custody of the Will till his death, and he

never felt informing anyone of his Will. Therefore, the reasons stated by the defendants cannot be accepted.

It was contended on the side of the defendants that the contents of the Will are artificial and unnatural. Every legal heir of the testator were

entirely depending on him either directly or indirectly as all of them were engaged either in the company or in the allied business depending on the

film production business by the testator. So everyone of the family members thought that the head of the family, the testator, is going to give the

valuable properties to him or her. It seems that some of them have not expected him executing a Will in order to make disposition of his properties

according to his intention. The defendants 1 and 2 left that they will be given a lion''s share in the company Prasad Production Pvt. Ltd. and the

major shares in the company were not given to them as expected. The daughter Gruhalakshmi felt that Manappakkam lands would be given to her

as the testator expressed his intention of giving that land to her. After coming to know the disposition made under the Will, they felt like attacking

the Will on more than one ground. One such ground is that the contents of the Will are artificial and unnatural. The main reason stated by the

defendants are that the Will does not reflect the true intention of the testator as he had revealed them earlier to his family members. The said

objection raised by the defendants cannot be taken as valid and for taking such objections they had relied on the reasons shown in ground Nos. 8

and 9 which are discussed in the following paragraphs.

The next contention raised by the defendants are that the testator during his lifetime he expressed intention of giving Manappakkam agricultural

lands to Gruhalakshmi his daughter and quite contrary to his intention expressed earlier, under Ex. P. 1 the said lands were bequeathed in favour of

his grand-sons Ravi Shankar Prasad and Manohar Prasad. Though the defendants had stated number of suspicious circumstances regarding the

execution of the Will, this particular reason stated by the 7th defendant would go against the interest of defendants 1 and 8. The execution of a Will

depends entirely on the intention of the testator. If the testator felt that his properties should go to his legal heirs in the normal line of succession,

there was no necessity for him to execute a Will and the very execution of the Will was to make a disposition against the normal succession.

Their Lordships of the Supreme Court in Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, :--

........ the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of

Will; of course, it may be that in some cases they are fully debarred and in others only partially.

While considering this decision, the claim of the 7th defendant that her father (the testator) expressed his mind openly to give away the

Manapakkam agricultural lands in her favour and in the Will Ex. P. 1 a disposition of the lands has been made in favour of the defendants I and 8

and therefore the Will is invalid for the reason of suspicion, cannot be a valid ground to suspect the Will Ex. P. 1. Similar decisions of the Supreme

Court would further confirm that execution of, daughter or son or a close relative in the Will, cannot be taken as a valid reason to suspect the said

Will.

In Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and Others, their Lordships held-

Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the Will appear unnatural but if the execution

of the Will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the Will invalid.

In P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar and others, the whole of estate was given to a son in execution of the daughter and

the Supreme Court held that itself is not sufficient to generate suspicion regarding the Will.

In Misri Lal (dead) by LRs. and another Vs. Smt. Daulati Devi and another, wherein the Will was executed in favour of some beneficiaries, who

were of different castes leaving the close relatives and the Supreme Court held that it cannot be an objection and the deprivation of one or all legal

heirs or near relatives cannot be taken as a valid ground if the execution of the Will is proved as expected under law.

From all these decisions it is clear that when once the valid execution is proved, the Will cannot be held as invalid on the ground that the disposition

was not made in favour of anyone or all of the legal heirs of the testator. Bequeathing a particular property in favour of one though the testator had

expressed his intention of giving that particular property in favour of another, earlier, if the execution of the Will is proved, such a disposition,

cannot be said to be invalid. What is required under law is proof of execution of the Will and not the disposition made under the Will in favour of

one or the other. The testator had every right to make a disposition of his property according to his own intention and the Court cannot weigh such

disposition made by the testator.

This Court in Chinnammal (Died) and Another Vs. Kannagi and Others, held-

Once the Will is proved to be true and it was executed by the testator, it is not for the Court to embark upon an enquiry whether the dispositions

made therein are fair and just.

Therefore this Court cannot go deep into the merits of the disposition made by the testator and come to its own conclusion whether it was fair or

just.

For all these reasons, the objection raised by the 7th defendant that her father expressed his intention of giving agricultural lands at Manappakkam

to her and much against his intention the lands were given to defendants 1 and 8 and therefore the Will is invalid, cannot be appreciated and on that

ground the Will cannot be suspended when once the execution is proved.

The defendants have contended that the testator''s wish was that the company Prasad Production Pvt. Ltd. should be for the benefit of the

entire family members and whereas the contents of the Will raise serious suspicions regarding the genuineness of the Will. This is one among the

contention on the part of the defendants that the contents of the Will do not go in accordance with the wish of the testator which he had expressed

during his lifetime. The defendants have not substantiated the said contention by let in either oral or documentary evidence. Any defence raised by

the defendants should be substantiated by them. In the present Will all the 2740 equity shares stood in the name of the testator in Prasad

Productions Pvt. Ltd. were bequeathed in favour of the plaintiff and his family members. In the Will dated 9-11-1979 marked as Ex. P.2, the

testator has bequeathed 1375 shares in favour of the plaintiff herein out of the total shares of 2750 shares and among remaining shares 690 shares

were bequeathed in favour of Ravi Shankar Prasad and 685 shares in favour of Manohar Prasad. In the second Will, Ex. P.3, dated 31-12-1979,

1050 shares were bequeathed in favour of the plaintiff and 250 shares in favour of his son Sai Varaprasada Rao and 350 shares each in favour of

Radha and Rama and 750 shares in favour of Renuka the daughters of the plaintiff. As per Ex. P.3 the entire 2750 shares were bequeathed in

favour of the plaintiff and his son and daughters. In the third Will, Ex. P.6, dated 24-12-1985 also all the shares were bequeathed in favour of the

plaintiff and his family members. When we see the consistent disposition by the testator in respect of equity shares of the company, the disposition

made under Ex. P. 1 is more probable. Earlier at the time of execution of the first Will Ex. P. 2 dated 9-11-1979 the testator thought fit to give half

of the shares in the company to his grandsons Ravi Shankar Prasad and Manohar Prasad the sons of the first son Anand Rao. Later on, the

testator has changed his mind and thereby he had not bequeathed any shares in favour of his grandsons Ravi Shankar Prasad and Manohar

Prasad. What made the testator to change his mind is immaterial to us. The testator had absolute right over those shares and nothing could prevent

him from make any disposition as per his intention.

The Privy Council in (Suna Ana Arunachellam Chetty v. S.R.M. Ramaswami Chetty) 35 Ind Cas 1 : AIR 1916 PC 113 held-

Once the man''s mind is free and clear and is capable of disposing of his property, the way in which it is to be disposed of rests with him, and it is

not for any Court to try and discover whether a Will could not have been made more consonant either with reasons or with justice.

Similar view was taken by the Supreme Court in Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, the Supreme Court observed :--

The Court of probate is only concerned with the question as to whether the document put forward as the last Will and the testament of a

deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound

disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.

From these decisions it is clear that the Court cannot go into the question whether the bequest is good or bad and what was in the mind of the

testator to change his earlier view of giving equal shares to his family members and thereafter to bequeath shares in favour of the second son and

his family members. At the same time, the said contention raised on the side of the defendants have not been substantiated by oral or documentary

evidence. The relevant allegations to show suspicions surrounding the Will and the failure to prove the same as required under law Will go to show

the futility in the contention and therefore the said contention raised on the side of the defendants also cannot be accepted. When once the various

suspicious circumstances shown by the defendants are all not proved and the plaintiff has let in sufficient evidence to dispel such suspicious, we

cannot support the contention of the defendants.

Their Lordships of the Supreme Court in Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, have decided the requirements in

respect of the proof of a Will and also the burden which rests upon the caveator in establishing the said allegations and held at page 2002-

The propounder has to show that the Will was signed by the testator : that he was at the relevant time in a sound disposing state of mind, that he

understood the nature and effect of the dispositions, that he put his signature to the testament of his own free Will and that he has signed it in the

presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus

which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious

circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his

property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are

other reasons for doubting that the dispositions of the Will are not the result of the testator''s free Will and mind. In all such cases where there may

be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the

propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the

suspicious circumstances which he must remove by clear and satisfactory evidence.

We have already seen the various suspicious circumstances alleged to have surrounding the Will Ex. P. 1. In the written statement filed by D. 1 and

D.2 it was alleged that the deceased could not have been in sound mind, memory and understanding and the said Will was obtained by undue

influence by the plaintiff and his associates namely the attesting witnesses and the Will was obtained by the fraud by the plaintiff with an object of

grabbing the control of Prasad Productions Pvt. Ltd. and that the deceased did not know the contents of the Will. The other suspicious

circumstances have already discussed supra and with regard to the undue influence and fraud alleged in the written statement, once again it has to

be stated the defendants have not taken those allegations seriously to let in evidence to prove the said allegations. The above decision of the

Supreme Court clearly shows that if the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.

D.W. 1 Ravi Shankar Prasad, did not say in his evidence that the Will was executed by the testator under undue influence by the plaintiff. As a

matter of fact, the question of undue influence has not been raised by the defendants during the trial of this case.

The other allegation regarding fraud has got its own significance and it has to be decided along with the valid execution of the Will by the

testator.

As held by the Apex Court in Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, the propounder has to satisfy the following

requirements to prove that the Will is valid and genuine :--

(1) The propounder has to show that the Will was signed by the testator;

(2) That the testator at the relevant time was in sound and disposing state of mind,

(3) That the testator understood the nature and effect of the disposition.

(4) That the testator put his signature to the testament of the own free Will; and

(5) That the testator had signed the Will in the presence of two witnesses who attested it in his presence and in the presence of each other.

The Supreme Court in Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 has observed that the due execution of Will is not primarily arriving at

finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due

execution. From the observation it is clear that the due execution of the Will is an admixture of law and fact and while deciding the valid execution

of the Will we have to bear in mind the law and to consider the facts and circumstances of the case. At the risk of repetition once again it has to be

pointed out that the testator had to change his decisions regarding disposition of his properties and with the result he had executed four Wills. The

last Will marked as Ex. P. 1 was executed on 27-9-1990 and the testator died on 22-6-1994 and he had not cancelled Ex. P. 1 till his death

nearly three years and nine months after the execution of Ex. P. 1. If the testator had any doubt regarding the disposition made by him under Ex. P.

1 he had sufficient opportunity to change the said Will.

It was argued on the side of the defendants that the Will was a fabricated one and the Will was fabricated for the purpose of getting the

properties of the testator by the plaintiff with the help of P.W. 1 Nanda Gopal and Kasthuri Rangan by adopting fraudulent means. If a party

challenges the Will on the ground of fraud, it has to prove the same. It was stated in more general terms that Ex. P. 1 is not a true and genuine Will

executed by the testator and no specific reason has been shown to prove that the Will was executed fraudulently. On the contrary, the consistent

case of the 7th defendant was that the recital in Ex. P. 1 Will was not consistent with the earlier views regarding the disposition of the properties

expressed by the testator during his lifetime. Though 1st and 2nd defendants challenged the validity of the Will on the ground that Ex. P. 1 was not

valid and genuine and the word ""fraud"" is also included in the written statement, the same has not been substantiated by assigning reasons. In such

circumstances, we have to see the validity of the execution of the Will Ex. P.1.

P.W. 1 Nanda Gopal was the Auditor and he had deposed that he knew Varaprasada Rao as his client even before 1956 when the company

Prasad Productions Pvt. Ltd. was started in the year 1956 he continued to be the Auditor of the company. It seems Varaprasada Rao the testator

had reposed confidence in his Auditor P.W. 1 and therefore he had entrusted the work drafting all his four Wills as per his instructions and P.W. 1

had signed as attesting witness in some Wills. The Will Ex. P. 1 was permitted to be in the custody of P.W. 1 by the testator and after the death of

the testator, P.W. 1 sent a letter along with copy of the Will to the parties concerned. When we consider these circumstances, we are unable to

accept the reason assigned by the defendants that the Will was fabricated by the plaintiff with the help of P.W. 1 and Kasthuri Rangan. In the

circumstances of the case, the said reason assigned by the defendants is nothing but a defence to challenge the Will and the defendants have neither

let in acceptable oral evidence nor filed any documents in proof of their contentions. Among the two attestors only P.W. 1 was examined who has

deposed that he had seen the testator signing each and every page of Ex. P.1. The main attack on the side of the defendants regarding the

execution of the Will is that the testator was not having sound disposing state of mind on the date of execution of Will i.e. 27-9-1990. P. W. 1 has

denied the said questions put to him and said that the testator was in a sound and disposing state of mind as he had visited his house to give

instructions at No. 8, Vijayaraghavan Road, Chennai 17 and after the preparation of the Will the testator visited the house and signed Ex. P.1, in

his and in the presence of Kasthuri Rangan. P.W. 1 has prepared the draft as per the instructions and after the approval, he had prepared the

original Will Ex. P. 1 and thereafter the testator after ascertaining the disposition effected in the said Will had signed the same in the presence of

P.W. 1 and Kasthuri Rangan. The facts may differ from case to case and in the instant case the facts and circumstances are taken together, it is

clear that P.W. 1 was having a sound and disposing state of mind at the time of execution. The testator had a fall on 23-12-1989 and underwent

an operation on 25-12-1989 and the Will was executed on 27-9-1990 nearly nine months after operation. The defendants have stated in a general

way that the testator was undergoing treatment as in and out patient in Vijaya Hospital for about a year and thereafter he was taken to Appolo

Hospital for further treatment. There is no acceptable evidence to show that on 27-9-1990, the testator was not having sound and disposing state

of mind. The burden is on the propounder to prove that the testator had a sound and disposing state of mind to satisfy the conscience of the Court

before coming to the final conclusion. We have already discussed the various suspicious circumstances surrounding the Will as stated by the

defendants and no such suspicious circumstance has been substantiated to disbelieve that the testator was having sound disposing state of mind on

that date. On the contrary the propounder has let in evidence regarding the mental and physical conditions of the testator by examining P.W. 3 Dr.

Sathya Kumar the personal physician of the testator. P.W. 3 has clearly stated that between 1989 and 1992 the testator''s mental condition was

normal and he was admitted in Apollo Hospital twice; once in 1992 and again in 1994. We are not very much concerned with what had happened

in 1991 and 1992. However, the evidence of P.W. 3 establishes the fact that during the relevant period the physical and mental conditions of the

testator were normal. The Will was executed nearly nine months after the operation an the cogent evidence available on record would go to show

that on the date of execution of the Will the testator was in a sound disposing state of mind. The evidence of P.W. 1 and P.W. 3 confirmed that the

testator was in a sound disposing state of mind on the date of execution of the Will.

The Privy Counsel in AIR 1945 174 (Privy Council) held -

It was all along a common ground that she was unwell when she executed the will but that is a long way from saying that she had no testamentary

capacity.

In a case of similar fact, the Supreme Court after going through the evidence in Brij Mohan Lal Arora and Others Vs. Girdhari Lal Manocha, held-

There is, however, evidence on the record, that despite her incapacity to write or sign, she was at the time of executing the will on the 18th Sept.

1960, in sound mental condition, and capable of understanding what she was doing.

These decisions show that because a person was ailing at the time of execution of the Will, it cannot be concluded that he/she was not have sound

disposing state of mind. In the instant case there is no satisfactory evidence to show that the physical ailments of the testator affected his mental

faculties. In such circumstances, there is ample evidence on record to show that the testator has sound and disposing state of mind at the time of

execution of Ex. P. 1.

P.W. 1 has stated that he and the other attesting witness had seen the testator signing the Will and the testator in turn had seen each one of

them attesting the Will.

The Court in Lakshmi Ammal Vs. Lakshmanan and Others, held -

A will is a document required by law to be attested and u/s 68 of the Indian Evidence Act it shall not be used as evidence until one attesting

witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the

Court and capable of giving evidence.

In Girja Datt Singh Vs. Gangotri Datt Singh, it was held that in order to prove the due attestation of the Will, the pro-pounder of the Will, has to

prove that the two witnesses saw testator sign the will and they themselves signed the same in the presence of the testator. In the instant case these

facts are deposed by P.W. 1 whose evidence we cannot brushed aside easily for the various reasons stated by the defendants.

While deciding the attestation of the Will, the Supreme Court in Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta, -

It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence

of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the

presence of the testator. This is a pure question of fact depending on appreciation of evidence.

To set aside that the Will was properly attested by the two witnesses, P.W. 1 has clearly stated that after the testator signing the Will in their

presence, he and Kasthuri Rangan had subscribed their signatures as attesting witnesses. The testator who was having a testamentary capacity at

the time of execution, has executed the Will. The attesting witnesses who were known to the testator for along time in connection with their

profession had been the testator signing the Will and had attested the Will. While considering the evidence of P.W. 1 it can be said that the Will

was properly attested by P.W. 1 and Kasthuri Rangan. There is nothing on record to doubt the valid attestation of the Will.

For all these reasons, it can be concluded that the Will has been properly executed by the testator and attested by the witnesses and the disposition

effected under the Will was at the time when the testator was having a sound and disposing stale of mind and therefore the Will is true and genuine.

The proof of the valid execution and attestation of the Will though a mixture of question of fact and law the same should satisfy the conscience

of the Court also.

In Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, the Supreme Court held -

After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the

need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain.

The same view was expressed by the Supreme Court in one of the recent decisions in Gurdial Kaur and others Vs. Kartar Kaur and Others, held

-

The law is well settled that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner

required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executed

the same after knowing the understanding the contents of the Will.

The propounder/plaintiff has let in satisfactory evidence to show that the Will was not only executed and attested in the manner known to law and

the Will Ex. P.1 is the product of the free volition of the testator who voluntarily executed after knowing and understanding the contents, and the

plaintiff has satisfied the conscience of the Court by letting in proper evidence as required under law.

For all the foregoing reasons this issue is answered in favour of the plaintiff. Hence, the plaintiff is entitled for the Letters of Administration prayed

for by him.

In the result, suit is decreed and issue letters of administration in favour of the plaintiff on executing a bond for sum of Rs. 5,000/-.