A.K.D. Rangaswami Raja and Another vs A.K.D. Venkata Raja and Others

Anantanarayanan, J.—These are related appeals from the judgment of Rajagopala Ayyangar, J., in Civil Suit Nos. 30 and 31 of 1956,

which were suits instituted by A.K.D. Rangaswami Raja and A.K.D. Balarama Raja, two sons of a certain landed proprietor, A.K.D. Dharma

Raja who died on 8th June 1953. In precise form Civil Suit No. 30 of 1956, was a suit for partition of properties upon rights accruing from a

registered Will executed by the late Dharma Raja on 19th November 1948 (exhibit A-18). Civil Suit No. 31 of 1956, was a suit for an injunction

restraining D.K. Raja (sole Defendant in this suit, and the eldest of the sons of late Dharma Raja), from interfering with the possession and

enjoyment of the Plaintiff in properties of the schedule, based upon the bequests of the same Will. In both these suits, D.K. Raja (fourth Defendant

in Civil Suit No. 30 of 1956, who will hereafter be referred to by that rank in the array of parties) propounded, a much later Will of the same

testator, also registered, exhibit B-4, dated 1st June 1953, under which he claimed the entire estate as sole legatee, to the exclusion of his brothers

and sister Lakshmi Ammal (fifth Defendant). The issue whether this Will (exhibit B-4) was really the last Will of a free and capable testator, hence

became the crux of the controversy. The execution, in a formal sense, was not seriously challenged; but the propounder was put to strict proof that

the Will truly represented the free intentions of the testator, and his testamentary capacity was certainly challenged (first part of issue 2 and

additional issue 1). Further, the caveators alleged that the Will was vitiated by fraud, undue influence, coercion and deception (second part of issue

2). The learned Judge held in favour of the propounder (fourth Defendant) on these vital issues. It is not disputed before us that, on these findings,

the decrees would follow, viz., failure of Civil Suit No. 30 of 1956, on all items of Schedules II and III save item 5 (Austin Car), and the dismissal

of Civil Suit No. 31 of 1956.

There is hardly any comparable sphere of law where the basic principles have been affirmed and reaffirmed in notable decisions, over such a

length of years. Equally, there is hardly any sphere in which the facts, individually and in aggregate, matter so significantly. For these reasons, it is

really not necessary that any extensive exploration of the case-law cited before us, should be undertaken here. We must content ourselves with

noticing those refinements of the law in the dicta of Courts that bear directly upon the facts of this case. In a certain sense, the entire superstructure

of the case-law could be not unfairly regarded as erected on the fundamental postulates of Barry v. Butlin (1838) 2 Moo. P.C. 480, Baker v. Batt

(1838) 2 Moo. P.C. 317 and Tyrell v. Painton (1894) P. & D. 151. These postulates are that the onus probandi lies in every case on the

propounder of the testament, so that he is bound to satisfy the conscience of the Court that the instrument is the last Will of a free and capable

testator. Again, if a party writes or prepares a Will under which he takes a benefit that is a circumstance which would excite the suspicion of the

Court, and justify its vigilance and jealous scrutiny before any grant of probate. The same principle has been extended to what may be termed

suspicious circumstances or factors in general, of course, attendant upon the execution of the Will, or in some clear manner related to that issue. It

is for the propounder to satisfy the conscience of the Court by dispelling those suspicions, in the light of the evidence and its probabilities. If he fails

to do so, and the conscience of the Court is not satisfied, probate will be declined though it may well be that the Court is not impelled to hold that

there has been wilful perjury in the matter. As Lord Brougham said in Pardon v. Williams (1840) 2 Curt 530.

There is no duty cast upon the Court to strain after probate and to grant it where grave doubts remain wholly unremoved.

In this country we have an enacted law of Evidence, and Section 3 of the Indian Evidence Act refers to proof of a fact and renders the standard

relative, that of a prudent man, and not an absolute one. This feature was noticed, with specific reference to proof of testaments by propounders, in

Jarat Kumari Dassi v. Bissessur Dutt ILR (1911) Cal. 245. A later Bench of the same Court in Surendra Nath Chatterji Vs. Jahnavi Charan

Mukherji, followed this decision, and observed that in India there was only one test or proof with regard to all civil cases, whether Wills or

otherwise. But an examination of cases relating to proof of testamentary dispositions in this country, and particular reference may be made in this

context to Sadachi Ammal Vs. Rajathi Ammal and Others, of our own Court Surendra Krishna Mondal v. Rani Dassi ILR (1920) Cal. 1043 and

to the Supreme Court decision in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, shows that this makes no essential difference to

the postulates, or their application to a given set of facts. As observed by Gajendragadkar J., in the last citation, the phrase the conscience of the

Court really stems from the ecclesiastical jurisdiction once exercised in Probate matters in England; the reality of it is the consciousness of the

Court that it has the solemn task of deciding on the validity of the Will, as the last testament of a free and capable testator. In the matter before us,

it is not disputed that Dharma Raja did affix two signatures in exhibit B-4 on 1st June 1953, which purported to contain his testamentary

dispositions. Since the record also appears to establish, fairly beyond challenge that this same testator proceeded in a bullock-cart to the office of

the Sub-Registrar, Rajapalayam, on 3rd June 1953 between 3 and 4 p.m. and had the Will registered by that official on a fee of Rs. 20 paid, it is

extremely difficult to see how the caveators could contend that the Will was not executed by the testator. But what is greatly in dispute is whether

the Will represents the true intentions of a testator with the necessary capacity, exercising his free judgment.

In these suits, though the caveators did allege a plea of undue influence, fraud and deception, they signally failed to establish this (latter part of

issue 2). That is the finding of the learned Judge, and it is difficult to see how this could be otherwise, the concerned parties not even purporting to

lead evidence upon the issue which cast the burden on them. Indeed, we could go further; when the vicissitudes in the procedure and trial of these

suits are analysed, which is essential for a related purpose also, it becomes plain that the issue was virtually abandoned. It was not a live issue at

the close of trial. But learned Counsel for the caveators Appellants contends that even independently of this, the propounder must prove that the

free mind of the testator went with the dispositions, and also prove testamentary capacity. It is urged that the broad circumstances of suspicion are

powerful in this case. There is a radical reversal of prior testamentary ideas, an exclusive benefit conferred on the eldest son (fourth Defendant), the

disinheritance of all the other sons, the daughter (fifth Defendant) and their children, and in f context which suggests that the fourth Defendant might

have greatly influenced the testator to execute the Will, and might have procured its registration. These arguments require an examinational some

detail of the life of this testator and the events that led him to execute the impugned Will, exhibit B-4.

This testator (Dharma Raja) could be described as a wealthy country-squire (he left an estate valued between two and three lakhs) deeply

interested in agriculture and cattle-breeding and considerably respected in the locality. The composite picture of the impressions of several

witnesses is a striking one. Dharma Raja was a man of limited education (he could not read English but knew some words of the language) but

shrewd, resolute and independent. He could not be trifled with, and was a strong-willed man. Unmistakably he was a man of great vigour of body

and mind even at the advanced age of 75. During all material times, his health was good, except for eczema of the legs, a superficial dermatitis

whether of allergic or fungus origin, to which some reference will be made later, but which was not in the least likely to have seriously affected his

health. Dharma Raja originally executed a Will exhibit B-19 in April 1941, and another exhibit B-20 superseding this, on 4th June 1943. This was

during the lifetime of his wife, Chakkini Ammal. Under the partition of 1939 exhibit B-5, the father and sons had partitioned the ancestral

properties, the document also referring to an arrangement for the testator to reside in the house allotted to A.K.D. Venkata Raja (first Defendant).

Even from 1932 or thereabouts, relations were greatly strained between the testator and his eldest son (fourth Defendant). There were actually

suits between them one of which (Original Suit No. 21 of 1942) related to income from properties of Schedule 14 to the partition deed. Reflecting

this bitter hostility, fourth Defendant was cut out of the first two Wills, though the father made provision for sons that might be born to his eldest

son. The third Will, exhibit A-18, was executed after Dharma Raja lost his wife, but has to be noticed only for one feature, viz., provision for Rs.

6,000 to be paid to the daughter Lakshmi Ammal (fifth Defendant), as Stridhanam. This context of relationships continues unchanged till January

1952, when political elections apparently introduced fresh disturbances leading to an altered situation.

Sri P.S. Kumaraswami Raja was related to this family, and was the Chief Minister of Madras State for some time, and later the Governor of

Orissa. A.K.D. Venkata Raja was his Private Secretary for a period; the first Defendant was in the Madras Judicial Service, and later retired as a

District and Sessions Judge. There can be no doubt that the first Defendant and Sri P.S. Kumaraswami Raja were on terms of great friendship and

mutual confidence. Indeed, even the testator and his other sons (except the fourth Defendant), had the same cordiality of feeling for Sri P.S.

Kumaraswami Raja. At the elections, fourth Defendant opposed Sri P.S. Kumaraswami Raja and defeated him, in spite of the fact that the testator

worked actively for the latter. It is not very clear what precise events transpired between January and May 1952. But with the letters exhibits A-13

and A-15 (May to December 1952) written by the first Defendant to his father the rumblings of a storm are certainly to be heard. We cannot be

satisfied that these letters directly caused the testator to alter his attitude to the first Defendant to such an extent as to later disinherit him. Per

contra, the letters of the father (exhibits A-14 and A-17) show that be was forbearing, and not so very changeable he was clearly a man not easily

affected by homilies, even from a son. But these letters (exhibits A-13 to A-15) are remarkable for harsh, sarcastic remonstrances, which could

well be deemed unfilial. They show that Sri P.S. Kumaraswami Raja was deeply perturbed about the reports of misappropriation of funds by the

testator, of the chatram trust of which he was the hereditary huqdar, and also of the Education Trust founded by Dharma Raja himself. They

equally level shafts of accusation, relating to the alleged sexual promiscuity of the testator.

From the end of May 1952, events began to move fast. These remarkable events which culminated in the filing of a criminal complaint by Sri

P.S. Kumaraswami Raja and another against the testator, the filing of a civil suit in respect of the chatram, endowments, the appointment of

Balarama Raja among the sons as the interim receiver therein, and the interim attachment of the properties of the testator himself are capable of

only one explanation. The testator was to be given a certain locus poenitentiae, if he stripped himself of control over the trust, or at least the

chatram trust, and surrendered his powers in favour of Alagar Raja and Balarama Raja amongst the sons; presumably, the misappropriated

amounts were also to be made good. Failing this, the police complaint would be pressed to its logical outcome, as well as the civil action for

redress, and this was the catastrophe referred to in exhibit B-10. In all this we must not assume for a moment that Sri P.S. Kumaraswami Raja and

A.K.D. Venkata Raja (first Defendant) who were the prime movers did not act upon honourable motive and high principle. It must be noted that

this testator had actually diverted the funds of the trusts to his use, to an extent of Rs. 10,000 in one case, and Rs. 6,000 in another. He admitted

as much to the Collector, Sri P.P.I Vaidyanathan, I.C.S. (D.W. 1). The sums were not large in proportion to his wealth; he probably thought that

he could make good the deficiency easily, if pressed. But neither Sri P.S. Kumaraswami Raja nor the first Defendant (A.K.D. Venkata Raja)

could contemplate with equanimity the spectacle of these unchecked diversions of trust-monies, these rumours of the old man''s profligacy. It is

vital to appreciate the contents of exhibit B-10, in the light of the evidence of Subbaraya, the testator''s friend recorded de bene esse. Subbaraya

makes clear the implicit threat, as explained by Rangaswami Raja (Plaintiff) to him. The Plaintiff has studiously avoided the witness box, instead of

essaying a contradiction he has kept silent. Thus, on 16th March 1953, the criminal complaint is launched. On 1st April 1953, the plaint in the civil

suit in respect of chatram properties (Original Suit No. 5 of 1953) is filed. On 4th April 1953, Balarama Raja is appointed receiver pendent lite.

On 9th April 1953, Interlocutory Application No. 78 of 1953, the application for attachment before judgment of Dharma Raja''s own properties,

is filed; the interim attachment was ordered on 17th April 1953. On 20th April 1953, we have the Committee Meeting of the educational trust,

when the testator was denied a chance to account for his alleged acts of malversation, mainly because of Sri P.S. Kumaraswami Raja''s attitude;

Sri P.P.I. Vaidyanathan, I.C.S., himself felt that opportunity could well have been given. On 20th April 1953, the plaint in another suit was signed

in respect of the Educational Trust.

An argument advanced by learned Counsel for the Appellants (Sri T.M. Krishnaswami Ayyar) is that the testator had no justification for

believing that not merely the first Defendant, but all his other sons (except, of course, fourth Defendant, with whom he had no commerce), were in

league against him, banded together under Sri P.S. Kumaraswami Raja. The record proves precisely the contrary. Not merely the first Defendant

but Rangaswami Raja, Balarama Raja and Alagar Raja were all associated in one form or another with the threat to which exhibit B-10 refers

(Subbaraya''s evidence makes this explicit), and with those civil and criminal proceedings which no doubt made the testator feel as a stag at bay,

with hounds upon his tract. Several lights or features of this situation must be noted. The testator himself was not a man to yield. He was by

temperament resolute, hard and implacable. At the same time, his status was high. Even Sri Vaidyanathan (D.W. 1) who knew the facts of the

misappropriation was startled and discomforted by the idea of the arrest of the old man. He was emphatically of the view that this would be

extreme and vindictive.

In such a situation it is not unnatural that the testator turned to the idea of cementing a new alliance with the erstwhile enemy, his son the fourth

Defendant, an M.L.A. who could certainly help him if arrest were an impending threat. Subbaraya the testator''s good friend definitely suggested

this. So did another friend, Parthasarathy Ayyangar (D.W. 10). Above all we have the unimpeachable testimony of the Collector (D.W. 1) that the

testator told him that Sri P.S. Kumaraswami Raja and his other sons could do nothing if he (Dharma Raja) really divested himself of powers

regarding the trusts in favour of his eldest son (fourth Defendant). No doubt this was bitter medicine for the testator to swallow. But the point is

that whether a music teacher like Sundararaja Bagavathar (D.W. 9) was trusted to the extent he claims as a mediator in the matter or not, the fresh

alliance was certainly brought about. An event which is indisputable in the case is the ceremony of reconciliation between Dharma Raja and the

fourth Defendant at the Sri Rama Temple on 8th May 1953, in the presence of many members of the Public. The testator then prepares the two

deeds, exhibits B-11 and B-12 the first of which is in respect of the chair am trust making the fourth Defendant the huqdar in itself a shrewd

counterstroke, with the assistance of the scribe Uthandam Ayyar (D.W. 4), no doubt a clerk under fourth Defendant. Incidentally whatever may be

the bona fides or the legal validity of exhibits B-11 and B-12 their strategic value cannot be doubted. As they came into existence on the very date

of reconciliation the fourth Defendant could not have brought them about. They certainly exhibit a capacity for planning and some shrewdness of

mind on the part of the testator even if we assume that he had professional advice. Briefly, they may be described as a counter-attack in respect of

the two trusts, with regard to the funds of which malversation was alleged against Dharma Raja.

Nor is this all. It is impossible not to be deeply impressed by the fact that notwithstanding the pressures on him and this newly-cemented

alliance the testator did not proceed immediately to disinherit his other sons by a Will and to bequeath all to the fourth Defendant as a less

circumspect man might well have done. On the contrary from the 8th of May to the first of June 1953, when he does execute the Will exhibit B-4

the testator proceeds to test the ground of the alliance beneath his feet. Nor does the fourth Defendant remain idle. He busies himself in several

ways using the prestige as M.L.A. to stave off a possible arrest, and if possible to exclude Sri P.S. Kumaraswami Raja and the others from

management of the two trusts. We have the notice of the meeting for 7th June 1953 (exhibit A-23). On the 11th of May or so, the fourth

Defendant meets the Collector (D.W. 1), in order to explain the situation. On the 19th May, both Dharma Raja and the fourth Defendant meet the

District Superintendent of Police at Madurai, and on the 27th of May Dharma Raja presents the petition exhibit B-3 to the Deputy Superintendent

of Police (D.W. 2), with the assistance of the fourth Defendant, at Sivakasi. A little after this, the testator consults Subbaraya about a settlement of

his properties in favour of the fourth Defendant and Subbaraya, his friend, advises the execution of a Will instead, which would not involve a heavy

stamp duty. This is the back-ground or curtain for the events on the 1st of June comprising the actual execution and attestation of the Will, exhibit

B-4, it certainly renders explicable the psychological change, in the testator, the radical reversal of prior testamentary ideas.

A few salient facts about the execution of this Will exhibit B-4, will be sufficient for our analysis. At a later stage, we shall be in a position to

scrutinise the attendant circumstances of infirmity or suspicion, under three main categories, (i) those intrinsic to the paper itself, the physical

characteristics, the possibility of a previous draft, etc., (ii) the broader circumstances of the testamentary dispositions, the benefit taken by the

propounder, the exclusion of the daughter (fifth Defendant), and the pressures under which the testator might have executed this Will, and (iii) the

alleged failure of the propounder to dispel these suspicions by frank and true evidence, inclusive of the failure to examine the Sub-Registrar. We

might here note that exhibit B-4 was written to the dictation of the testator by the scribe Uthandam Ayyar (D.W. 4), the testator having the prior

Wills with him. The first part of exhibit B-4 is quite a brief text, cancelling the prior Will and bequeathing the entire estate to the fourth Defendant,

because of the whole hearted belief of the testator that his eldest son would fully protect him in the future, throughout the lifetime. The right to

cancel or alter the testament is reserved. After the testator signed this Will, he gave it to Subbaraya, who was present, to attest. Subbaraya read

the text and stated that the registration number and other particulars of the last cancelled Will might be advisably added. Dharma Raja dictated

these particulars, and D.W. 4 wrote them, after which the testator again signed. Subbaraya attested. Then, as instructed by Dharma Raja, D.W. 4

left some place for two more attestations, and wrote an endorsement as scribe, which he himself attested. After this, D.W. 4 went away, but

Dharma Raja and Subbaraya went to the house of the fourth Defendant who was absent. They were talking for sometime to Panchali Ammal

(D.W. 8), the sister of the testator, who himself told her about the execution of exhibit B-4, and its contents. She expressed deep gratification.

Balakrishna Raja (the one attestor to the Will not examined in the suits) came there and read and attested the Will at the request of the testator.

That is all that happened on the first of June. We might add that, according to fourth Defendant, he was not merely not present at the material time

of execution, but that he did not know about the Will at all that day, and learnt of it from his clerk (D.W. 4) only on the second of June in the

morning.

As we have earlier stated, the testator went to the office of the Sub-Registrar between 3 and 4 p.m. on 3rd June, and obtained the registration

of the document by that officer (Sri Rajamani), who knew him well previously and had actually registered certain of his prior documents for

instance exhibit B-11.

This is one of the indisputable facts in the case. On this area of evidence, we not merely find that there is no attack, but that the extensive and

minute cross-examination of the fourth Defendant actually supports the hypothesis. For, on the same day and at about the same time, the fourth

Defendant registered a mortgage document (exhibit B-59) in favour of his relative Kasiram Ammal for Rs. 6,500. Curiously enough, the

suggestions in the cross-examination are to the effect that this mortgage itself was intended to raise monies to help the testator, that the testator was

perfectly aware of this, and that he committed suicide by shooting himself with his licensed revolver on the morning of the 8th June, because of

disappointment that such monies did not reach him for succour. These were apparently made to substantiate a theory of domination, undue

influence or deception. We think that exhibit B-59 perhaps had this object, but there is no such specific evidence. In any event, the registration of

exhibit B-4 by the testator, who acknowledged it as his latest Will, is implicit in every turn of the cross-examination of the fourth Defendant, on the

events of the 3rd June. Muthayya Chettiar (D.W. 3) attested the Will on the 3rd June at the office of the Sub-Registrar; he was sent for by Dharma

Raja for this purpose according to his testimony.

In the first week of June 1953, Parthasarathi Ayyangar (D.W. 10) halted at Rajapalayam en route to Alleppey, and visited his friend Dharma

Raja, the testator. This has some bearing on the question of testamentary capacity as D.W. 10 swears that he found the testator perfectly normal.

On the 7th of June there was the meeting of the reconstituted Education Trust, of course, fashioned and brought into existence in order to aid the

testator and to circumvent Sri P.S. Kumaraswami Raja, etc., and we have the minutes of these proceedings exhibit B-58. On this occasion, the

testator handed over exhibit B-4 and the prior cancelled Will to the fourth Defendant. He also informed his friend Ramaswami Mudaliar (D.W. 11)

of the execution of exhibit B-4 and of its contents. The fourth Defendant left Rajapalayam for Kallidaikurichi at 4-30 p.m. that day in order to

attend a marriage.

At about 4 p.m. on the 8th of June, the testator who was then alone in his bungalow shot himself with his revolver and committed suicide. But

before he died he was able to point to the revolver lying near him and to himself, to a private servant, and thus unmistakably to indicate that a

suicidal act was the cause of the catastrophe. The precise depth of the motivation behind this act, will never be known. It has, of course, a certain

bearing on the question of testamentary capacity, to be discussed in due context. The sister Panchali Ammal was informed, and she arrived almost

immediately. Alagar Raja, among the sons, was also present very early after the tragedy, the fourth Defendant arriving at 10 a.m. from

Kallidaikurichi, and Rangaswami Raja (Plaintiff) and A.K.D. Venkata Raja from Kodaikanal where they were then, at about 3 p.m. All this has

some significance, only with regard to the last of the diaries maintained by the testator, that for 1953. The evidence shows that a police-officer did

inspect this diary, and that it contained entries up to the 7th of June. It has disappeared, and since the testator was living in the house allotted to Sri

A.K.D. Venkata Raja, and objection was taken by Alagar Raja to any attempt by the fourth Defendant to take or remove any properties, the

learned Judge has been compelled to conclude that the Plaintiff and the other sons, except the fourth Defendant, must have been responsible for

the suppression of the diary for 1953. The impressions of many witnesses in varying contexts, including admission under cross-examination, are

consistent and assured upon one point. Dharma Raja was no coward, but a man of great physical and mental courage. His vigour and tenacity are

themselves indicative of his zest for life. We agree with the learned Judge (Rajagopala Ayyangar J.) in thinking that little significance should be

attached to the testator''s expression--I do not like to live in this world any longer in his letter to the first Defendant, exhibit A-17, dated 12th

February 1953. It was not truly indicative of tedium vitae but is rather an attempt to rouse sympathy and support by an old man under pressure

and difficulties. Why did a man of such fibre commit suicide? It might well have been due to a sudden mode of blackness, a sudden panic which

could beset the bravest of men, when he saw himself inevitably arrested, brought to trial and disgraced. But, in truth, the suicide throws little or no

light upon the mental powers of Dharma Raja on the 1st of June, when he executed the Will.

With this outline of the main events, we are in a position to proceed further into those categories of suspicion which, according to Sri T.M.

Krishnaswami Ayyar for the Appellants, have not been dispelled in this case by the evidence and its probabilities. Learned Counsel argues that, in

such a state of the evidence, it is the duty of the Court to decline probate and that these appeals should hence be allowed. But, before proceeding

into this aspect, it is essential for us to analyse the history of the trial of these suits. At one stage of that history, Balakrishna Ayyar J., referred in an

application before him (725 of 1956), to procedural wrangles in which these suits have got involved. It could even be said that, prior to the transfer

of these suits to the original jurisdiction of this Court for trial, there was a muddle in that procedure which created the subsequent difficulties. This

aspect has to be scrutinised for two important reasons. Firstly, the evidence on behalf of the propounder (fourth Defendant) has been led in three

distinct stages; the stage up to the examination of the scribe D.W. 4, next the stage at which the evidence of Subbaraya was recorded de bene

esse, and finally the last stage consisting of the testimonies of the fourth Defendant (D.W. 7), Panchali. Ammal (D.W. 8), Sundararaja

Bhaghavathar (D.W. 9), Parthasarathi Ayyangar (D.W. 10) and Ramaswami Mudaliar (D.W. 11). The question arises whether this entire evidence

could be taken into consideration, or the record, for purposes of judicial scrutiny, ought to be limited to any earlier stage. Secondly, there is the

equally important question, referred to by us already, whether, in the (sic) of the facts of the procedure, the caveators, could at all contend that the

issue relating to undue influence, fraud and deception, survived the trial as a live one. For these purposes, the facts of the procedure may be now

set forth.

The two suits were originally filed in the Subordinate Judge''s Court, Ramanathapuram, and then transferred to the District Court of

Ramanathapuram as Original Suit Nos. 2 and 3 of 1955. What happened during the trial in the District Court was this. The learned District Judge

directed the Plaintiff to commence the evidence, but shortly thereafter a difficulty was felt that it was the propounder who had to establish the Will

(exhibit B-4), and that the Plaintiff could not be expected to consent even to a formal proof of the document without evidence. There was an

agreement to the effect that the fourth Defendant could first prove exhibit B-4.

that the Plaintiff might lead his evidence thereafter and the fourth Defendant might lead rebutting evidence afterwards.

The fourth Defendant agreed to this course and D.Ws. 1 and 2 were examined on commission, after which D.W. 3 was examined on 6th August

1955 and 8th August 1955 and D.W. 4 examined on 9th August 1955. On 6th August 1955 itself the fourth Defendant filed a memorandum to the

effect that he was leading formal proof of the execution of the Will, dated 1st June 1953, and that he reserved the right to let in evidence on all the

other issues. This was strenuously opposed by the Plaintiff, on the ground that the burden lay on the fourth Defendant on the first part of issue Z

and the whole of additional issue 1, which, of course, was not in dispute. The matter could and ought to, have been resolved at that stage by a

clear order either holding that, after formal proof of exhibit B-4, the fourth Defendant (propounder) could lead evidence discharging the onus that

lay on him, or that, at that stage, formal proof of the Will would alone be sufficient for purposes of the trial. Unfortunately, no order then appears to

have been passed, and this climate of mutual miscomprehension continued. After P.W. 1 was partly examined, on 11th August 1955, the Plaintiff

filed a memorandum to the effect that, in view of the evidence adduced by the propounder, the Plaintiff and Defendants 1 to 3 were not adducing

any evidence on the latter part of issue 2 (undue influence). Matters came to a head when two petitions were filed by the respective parties before

the learned District Judge, both u/s 151 of the Code of Civil Procedure, Plaintiff contending in Interlocutory Application No. 167 of 1955, that the

fourth Defendant could not adduce any further evidence on the first part of issue 2 and the additional issue 1, and the fourth Defendant

(propounder) contending in Interlocutory Application No. 174 of 1955, that he led evidence previously only of the formal execution of the Will.

The learned District Judge, in his order, observed that the learned Counsel for the fourth Defendant definitely chose to close his evidence when the

learned District Judge actually expected Subbaraya Pillai, a most important witness, to be marched into the witness-box following D.W. 4 The

learned District Judge held that the fourth Defendant had no further right to lead evidence on the issues. The matter came up in revision to this

Court before Rajagopalan J. (Civil Revision Petition Nos. 939 and 1214 of 1955) and the learned Judge, after confessing his inability to approve,

of or even to appreciate the stand taken and the tactics adopted by the fourth Defendant and his Counsel nevertheless observed that the learned

District Judge had a special discretion to permit further evidence under the Explanation to Order XVIII, Rule 2, Code of Civil Procedure, and that

it was difficult for him:

to hold that the end of justice would be promoted by shutting out the available evidence, on the basis of procedural law and then decide the case

by an appeal to the doctrine of burden of proof.

In result, the learned Judge set aside the order of the lower Court and remanded the applications for disposal in the light of his observations. What

subsequently happened was that the two suits were transferred to the original jurisdiction of this Court for trial, by Govinda Menon and

Ramaswami JJ., in Civil Miscellaneous Petition Nos. 8474 to 8476 and 7762 of 1955. That was how the matter came up before Balakrishna

Ayyar J., for the examination of Subbaraya Pillai de bene esse. Admittedly, u/s 24 of the Code of Civil Procedure, the Court had jurisdiction either

to retry the suits or to proceed from the point of transfer or withdrawal; it is also a matter of admission that no retrial was attempted in these suits.

In dealing with the matter before him in Application No. 725 of 1956, for the examination of '' Subbaraya, Balakrishna Ayyar J., referred to

these procedural wrangles as also the dicta of Rajagopalan J., in Civil Revision Petition Nos. 939 and 1214 of 1955, and directed that the

evidence of Subbaraya be taken de bene esse. Again, the learned Judge had to deal with this procedural controversy in Application Nos. 1994

and 1995 of 1956, the former of which was for striking off the evidence of Subbaraya taken de bene esse. The learned Judge then directed as

follows:

...the purpose of all trials and of all judicial procedure is to ascertain the truth. The CPC gives the Court a fair measure of discretion in the matter

and in my view, that discretion should be exercised in favour not of shutting out available evidence on some technical pretext or other, but of

receiving all relevant evidence that will help to bring out the truth. I therefore direct that the fourth Defendant in C.S. No. 30 of 1956 shall have

liberty to adduce further evidence on the first part of issue 2 and also additional issue 1 and by way of rebuttal on the latter part of issue 2.

Naturally, the opposite side will be given the fullest opportunity of meeting all the evidence adduced by the fourth Defendant.

This was on 11th September 1956. It was after this that the fourth Defendant himself (D.W. 7) and the other witnesses were examined. In

December 1956, P.Ws. 1 to 5 were examined for the Plaintiff on commission. In November 1956, Plaintiff and Defendants 1 to 3 and 5 filed a

memorandum into the Court that they were not examining any witnesses on the latter part of issue 2, and that, as regards the latter part of issue 2,

we rely on the evidence already on record.

From this procedural history, two consequences would clearly appear to follow. Firstly, it is not as if the propounder led evidence upon the

disputed Will (exhibit B-4), in the first instance, as all the evidence that he had to offer in discharge of the onus probandi which undoubtedly lay on

him. On the contrary, there was an unfortunate miscomprehension in this matter, and it may be that the propounder and his learned Counsel were

labouring under an impression that it was formal evidence alone that was necessary at that stage. Later, the learned District Judge prevented the

fourth Defendant from adducing further evidence, and this order was set aside by Rajagopalan J., in revision. The suits were transferred here, and

Balakrishna Ayyar J., having in mind the history of the procedure, not merely permitted Subbaraya Pillai to be examined de bene esse, but also

permitted the fourth Defendant to adduce other evidence. Under those circumstances, it is clear enough that the order of the learned Judge

(Balakrishna Ayyar J.) ought not to be construed as merely an order under the Explanation to Order XVIII, Rule 2 of the Code of Civil

Procedure, authorising the examination of Subbaraya alone. On the contrary, the learned Judge, in his later order, referred to the procedural

wrangles and permitted the fourth Defendant to lead further evidence. As the matter had not been clarified at the trial in the District Court of

Ramanathapuram, it is clear that the fourth Defendant (propounder) is entitled to urge that the entire record should be taken into judicial

consideration, and no part of it rejected from scrutiny, though it may be that the propounder was also guilty of laches. We note that under closely

analogous circumstances, in Sigappi Vs. Kathayee, . Madhavan Nair J., gave an opportunity to the Defendant to adduce further evidence, in the

interests of justice, but imposed a condition with regard to costs alone. It appears to be equally clear that the memorandum filed by the Plaintiff and

Defendants 1 to 3 that, as regards the latter part of issue 2, they were relying on the evidence already on record was meaningless. Actually, no

evidence upon that part of the issue had been led. Again, the order of Balakrishna Ayyar J., in Application Nos. 1994 and 1995 of 1956, is

perfectly clear. The propounder was given a definite right to lead further evidence by way of rebuttal on the latter part of issue 2. The propounder

was not given this opportunity, and hence the issue relating to fraud, deception and undue influence was not really a live issue at the close of trial.

No doubt, Rajagopala Ayyangar J., has discussed the evidence on this aspect also and held that neither fraud, deception nor undue influence was

made out in the case, but strictly speaking, that is only ex abundanti cautela.

We may now pass on to the main arguments addressed to us by the learned Counsel for the Appellants (Sri T.M. Krishnaswami Ayyar), upon

the circumstances of suspicion in the case, and the extent to which they have been dispelled by the probabilities of the evidence.

We shall first refer to the broader circumstances, before discussing those intrinsic to the paper itself and its physical characteristics. Here, it is

urged, we have a propounder taking the entire benefit under a Will, who was the enemy of the testator for years previously. The testator effects a

radical reversal of his idea under the prior three Wills including exhibit A-18. He disinherits all his other sons and even his daughter (fifth

Defendant), for whom he had made express provision under exhibit A-18. The Will is written by a clerk of the propounder (D.W. 4), under

circumstances which very strongly suggest that the propounder (fourth Defendant) might himself have been present, and might have engineered the

document. It is urged that the learned Judge (Rajagopala Ayyangar J)., has definitely disbelieved the story that the propounder did not learn of the

Will on the first of June itself, when he was actually at Rajapalayam that day, but learnt of it only the next morning from his clerk (D.W. 4). No

grounds are set forth in the Will explaining the reversal of prior testamentary ideas, or the disinheritance of the daughter. Further, the propounder

has not assisted the Court by giving the most complete information, and throwing the maximum illumination on attendant circumstances, as the law

obliges him to do. Among the attestors, Balakrishna Raj a, has not been examined, and the Sub Registrar who registered the Will (Sri Rajamani)

has not been examined. The evidence shows that, after its execution, the Will was taken from place to-place, and it is noteworthy that Balakrishna

Raja attested the will only later that day, while Muthiah Chettiar (D.W. 3) attested the Will only at the time of registration. It is strenuously

contended that the testamentary capacity of the testator has not been established, that he was then subject to great mental pressures as the record

abundantly proves, and that we must decline probate on this ground also.

These arguments certainly merit very careful consideration, but they appear to miss the essential and remarkable feature of this case, namely,

that the very events between January 1952 and first of June 1953, both illuminate and render explicable the radical reversal of the testator''s prior

ideas regarding the bequests that he should make in his Will. Even as regards the daughter, the circumstances are such as to render the exclusion

fairly explicable and probable, if not totally so. The daughter Lakshmi Ammal (P.W.3) no doubt had a bequest in her favour under the prior Will,

but her own admissions show that herself and the fourth Defendant were on terms of such misunderstanding as not to talk to each other, for eleven

years. Again, she significantly adds

I did not see my father after he joined with the fourth Defendant. (8th May 1952).

Under those circumstances, and considering that the prior request was a small one for Rs. 6,000, it is probable that the testator was not impelled

to make any provision for the daughter or her children in his last Will (exhibit B-4). As regards the sons, we have already seen that, to the mind of

the testator, they were all of them ranged in the opposite camp under Sri P.S. Kumaraswami Raja. There are two powerful probabilities in this

case upon this aspect which appear to clinch the issue a part from the question of the testamentary capacity, and that will be separately discussed.

Firstly, there is very little against Subbaraya, de bene esse witness, and his evidence fully explains the dispositions themselves, and the actual

execution of exhibit B-4. It is true that Subbaraya Pillai gave some-equivocal or untrue answers about his knowledge of the trial of these suits in the

District Court, and his presence at about that time in the Court at Madurai; the fourth Defendant has contradicted him on these points. But that

apart, it is abundantly clear that Subbaraya Pillai was a close friend of the testator (this is the very case of the Plaintiff and the other Defendants),

and we see no ground whatever why he should commit perjury with regard to the Will. Even as regards the fourth Defendant (D.W. 7), his

extensive and minute cross-examination has not in the least shaken his evidence concerning his public reconciliation, and the way in which he

subsequently helped his father, etc. It may very well be that D.W. 7 learnt of the Will that very day, and we agree with the learned Judge in thinking

that it is most unlikely that he was not told of it immediately by his clerk (D.W. 4). It may even be that the fourth Defendant (D.W. 7) was

physically present either in the testator''s house, or somewhere in the vicinity. We have not the slightest grounds for believing that the Will was not

the expression of the conscious intentions of the testator. Actually, it is fairly established that the Will was not merely dictated to D.W. 4 by the

testator and executed by him, but that it did represent the testamentary dispositions of Dharma Raja. This is because, as we have earlier stressed,

the subsequent facts of the registration on the 3rd June are indisputable. Very little really turns upon the failure to examine the Sub-Registrar, in the

light of the facts of this particular case. For, it is beyond doubt that the testator proceeded in a bullock-cart to the office of the Sub-Registrar on

3rd June healthy in body and sane in mind as far as we can judge, and that he claimed the Will to be his testamentary disposition and had it

registered as such. Under those circumstances, it is clear that while the caveators could contend that the testator might have been influenced or

dominated by the fourth Defendant, or even that he lacked testamentary capacity, the evidence in the suits definitely establishes that Dharma Raja

executed exhibit B-4 as his Will and had it duly registered on 3rd June.

We shall now turn to the circumstances of suspicion intrinsic to the paper to the Will, and the physical characteristics of the document. Here,

learned Counsel for the Appellant points, out that, unlike the prior Wills, this is a very brief text, without schedules. There are certain suspicious

differences, if exhibit B-4 is compared with the prior Wills. Those relate to the way in which the initials of the testator have been set forth, the fact

that no conditions have been given notwithstanding the use of the word sharaththugal, the way in which the scribe has written the text without a

single alteration or correction, as though a draft had existed, the manner in which the last line of the added text about the particulars of exhibit A-18

has been inscribed above the second signature of the testator, etc. We have very carefully considered these characteristics and alleged infirmities.

The point is that they are inconclusive, and largely cancel out each other. For instance, certain features do suggest that there might have been a

prior draft of the Will. But the addition of the text about the particulars of the prior Will exhibit A-18 and the evidence of Subbaraya on this point,

clearly negative this. Further, the preamble itself was largely taken from the prior Will, and the testator could well have dictated it without a draft.

The disposition are contained in one or two sentences. Since the entire estate was left to the fourth Defendant, who would be bound to discharge

the debts, there was no need for specifying the debts as in previous instances. The expression sharaththugal might well indicate the terms or

dispositions themselves, and its sole meaning is not that conditions are attached to the Will. In brief, unless it be argued that the testator executed

this. Will and later registered it on the 3rd June either under some kind of undue influence or domination, or while bereft of testamentary capacity in

the true sense, it is difficult to see how the facts established by the record could be seriously challenged.

It is in this context that a certain argument stressed by the learned Counsel for the Appellants (Sri T.M. Krishnaswami Ayyar) has to be

seriously examined. The argument is that unless and until suspicions are dispelled and the conscience of the Court is satisfied, probate ought to be

declined, though it is or might be indisputably established by the evidence that the Will was executed by a free and capable testator, and that it

represents his intentions; this is, of course, apart from a plea of undue influence. This attitude to the entire question does not appear to be justified,

upon the fundamental postulates earlier referred to. It is relevant to note the dicta of the Judicial Committee in Harmes v. Hinkson AIR 1946 P.C.

156, 163.

These rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of

grave suspicion, a resolute and impenetrable incredulity.

The true position is that where circumstances of suspicion or grave suspicion exist, they determine the perspective of approach of the Court to the

central issue. The evidence adduced might either prove the execution of the testament as that of a free and capable testator and thus dispel those

suspicions or leave them undispelled, even darkened further. In the latter case, the Court will certainly decline probate. But where the Court is

satisfied, from the evidence, that the Will was validly executed by a testator with capacity, the suspicions are dispelled by the very force of that

conclusion. A single illustration will be sufficient to show this. A testator might leave his entire estate to a favourite mistress, to the unmerited and

total exclusion of a faithful and loyal wife. It might even be that the mistress had something to do with the circumstances of the execution of the Will.

These are powerful grounds for suspicion, and the Court will approach the facts in that perspective. But if we suppose it is fully established, in such

a case, that a free and capable testator did execute such a Will, suspicion is then reduced to a perversity in the mind of the testator, upon which the

Court will not judge. For, the Court does not make a Will, and, apart from the question of the execution of the Will by a free testator with

capacity, the Court is not concerned with the wisdom and righteousness of the dispositions. Again as pointed out by Willmer J., in In re R.

Deceased (1950) 2 All. E.R. 117 the circumstances which excite the suspicion of the Court must be relevant to the preparation and execution of

the Will, in some form, and cannot merely be suspicions concerning the veracity of witnesses. It may very well be that the fourth Defendant (D.W.

7) has given untrue evidence in certain respects, or that Subbaraya has done so. But the question is whether those matters concerned the execution

of the Will, and render that fact doubtful. It is also pertinent to observe that where the evidence proves that the Will was read over to a capable

testator or dictated by him, and then executed by him, as here.

These circumstances afford a very grave and strong presumption that he knew and approved all the contents, a presumption which can be rebutted

only by the clearest evidence Gregson v. Tailor etc. (1917) P.D. 256.

But it is strenuously urged that proof of testamentary capacity is not adequate and convincing, because the testator did commit suicide on the

8th June, and he must have been subject to powerful emotional disturbances, owing to the turn the events have taken. The Plaintiff actually

attempted to adduce some volume of evidence on this point, such as the testimonies of Lakshmi Ammal (P.W. 3), the cook Muthuswami Raja

(P.W. 5) and the physician Govinda Pillai (P.W. 1) and P.Ws. 2 and 3, among those examined on commission. This evidence is most

unimpressive, and totally unconvincing, For instance, the physician Govinda Pillai (P.W. 1) solemnly declares that the testator was suffering from a

grave skin disease called Gajashambathu, that he (P.W. 1) was prescribing some oil as external medication and that the disease would cause

drowsiness and render memory and brain-power liable to failure. The entire evidence strikes any impartial judgment, as both unscientific and

untrue. The concept of testamentary capacity has been dealt with in several English decisions, such as Earl of Sefton v. Hopwood (1855) 1 F. & F

Marsh v. Tyrrell (1828) 2 Hagg. 84, Harwood v. Baker (1840) 3 Moo. P.C. 282. Burdett and Anr. v. Thompson (1873) 3 P & D 72 etc.

We shall here content ourselves with setting forth the following observations from Theo bald on Wills (eleventh edition, 1954), page 29, which is

the quintessential statement of the principles of these, and similar decisions:

A testator must, at the time of making his will, have an understanding of the nature of the business in which he is engaged, a recollection of the

property he means to dispose of, of the persons who have a claim to be the objects of his bounty, and the manner in which it is to be distributed.

But we have aboslutely no reasons for assuming that Dharma Raja was not a sane person in good health, at the time of the execution of this Will,

who, apart from any question of undue influence, was possessed of testamentary capacity in this sense, and perfectly able to bear these

considerations in his mind and memory. The dictum of Hannen J., in Burdett and Anr. v. Thompson (1873) 3 P & D 72, that whatever is the

highest degree of soundness of mind is required to make a will may be easily misunderstood. Testamentary capacity is not a special faculty, given

only to few, or to most persons only when in an exceptional state of clearness of thought and memory. That is not the law, and if that were to be

the law, it would lead to the startling consequence that many average persons might be incompetent altogether to make a Will. It is the normal state

of self-recollectedness of a sane person, who is in good, health, and whose powers of judgment and memory have not been pathologically

affected. It is impossible to subscribe to the proposition advocated by the learned Counsel for the Appellants that the anxieties and tensions which

Dharma Raja was then undergoing, should have affected his testamentary capacity. Life is full of anxieties and tensions, and this testator, was, by

all accounts, a particularly strong-willed and resolute man. If one were compelled to wait for a relative tranquillity of mind, in order to make a valid

Will, it would merely be waiting, as the Tamil proverb of homely wisdom has it, to take a sea-bath after the waves first subside.

There is another argument, advanced in the same context by the learned Counsel for the Appellants, which has to be examined. It is that even if

Dharma Raja had the necessary testamentary capacity, and did execute this Will, his mind going along with the dispositions, nevertheless, he might

have been acting as an automaton under the domination of the fourth Defendant. This is pressed as probability, even apart from the issue relating to

undue influence, on the strength of certain dicta of Gajendragadkar J., in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , already

referred to. The passage is as follows at page 452:

It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such

pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting

of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the

matter.

In the present case, the answer to this appears to be simple. It may be that the testator was influenced by strategic considerations both in

cementing the new alliance with the fourth Defendant, and in making him his sole heir under exhibit B-4. But, as pointed out by Venkatarama

Ayyar, J., in Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta, ., it is not every influence which is undue and the aspiring legatee may well

plead his case before the testator, or importune him, or by the practical value of his assistance, persuade the testator to benefit him. As Lord

Penzance stated in Hall v. Hall (1868) 1 P & D 481.

A testator may be led, but not driven.

It is most unlikely, judging from the character of Dharma Raja, that any person could have driven him, much less his eldest son (fourth

Defendant). On the contrary, the turn of the events itself accounts for the execution of the Will (exhibit B-4), and renders it explicable.

We are hence satisfied that the findings of Rajagopala Ayyangar J., upon the main issues ought to be confirmed, and it follows that the appeals

have to be dismissed.

As regards costs, the learned Judge (Rajagopala Ayyangar J.) directed the Plaintiff to pay the costs of the sole Defendant (fourth Defendant) in

Civil Suit No. 31 of 1956, and in Civil Suit No. 30 of 1956, gave costs to the fourth Defendant to be paid by the Plaintiff and Defendants 1 to 3

and 5. In view of the exceptional nature of the cause and the protracted trial involved, the learned Judge determined the Advocate''s fee of Rs.

2,600 in Civil Suit No. 31 of 1956 and Rs. 7,500 in Civil Suit No. 30 of 1956, applying Order 5, Rule 16 of the High Court Fees Rules, 1956.

We consider that there are two important grounds why the fourth Defendant is not entitled to such costs. The first is the procedural history of these

suits, that has been set forth in detail earlier, reference also having been made to Sigappi Vs. Kathayee, . If there had been no indulgence in favour

of the fourth Defendant, the matter might conceivably be different. But there has been a definite indulgence in his favour though, of course, the

evidence adduced by him forming the entire record, has been considered for judicial scrutiny, not as a matter of concession, but in the interest of

justice; in any view, from the stage beyond the stage of the de bene esse witness, the fourth Defendant could well have been directed to pay the

costs of the Plaintiff and Defendants 1 to 3. Further, it cannot be said that the fourth Defendant has been without fault or laches altogether in other

respect; particularly with regard to his knowledge of the testament (exhibit B-4) on the 1st of June itself he has certainly not given true evidence.

Again, the very relationship between the parties may also be considered though the litigation itself has been characterised by bitter acrimony

throughout. For these reasons, we are of the view that both the parties should bear their own costs throughout, and, in this view, it is really not

necessary to determine the Advocate''s fee at any higher figure. The appeals are dismissed accordingly.

Civil Miscellaneous Petition No. 6692 of 1960.--This is a petition under Order 41, Rule 27, Code of Civil Procedure, for the admission of

additional evidence in Original Side Appeal No. 19 of 1957, etc., the additional evidence being (1) photostat copy of a letter purporting to have

been written by the fourth Defendant (fourth Respondent) to the Sub-Registrar of Rajapalayam and marked as a document in some other

proceeding (Civil Suit No. 29 of 1956) and (2) the copy of the deposition of the Sub-Registrar (Sri P. Rajamani) in that proceedings. We do not

think that, in the interest of justice, these prayers should be granted, or could be granted. It is sufficient to state our grounds, very briefly, for this

view. The photostat copy in question is, by its very appearance, a truncated part of a letter containing neither any specific date nor sufficient

particulars of the subject matter from which the entire context of the reference to some draft of Will, could be known. It even appears as if this part

of the letter has been torn away from an upper portion, which is not before us. Under those circumstances, it would be obviously improper to

admit this document as evidence, or permit it to influence judicial consideration in the case. The same observations apply to the deposition of the

Sub-Registrar (P.W. 1 in Civil Suit No. 29 of 1956). The petition is rejected.

Civil Miscellaneous Petition No. 6693 of 1960.--As Civil Miscellaneous Petition No. 6692 of 1960 has been rejected, this Petition is also

rejected.

Civil Miscellaneous Petition No. 2449 of 1961.--This is a petition under Order 41, Rule 27, Code of Civil Procedure, (i) for examination of

the Sub-Registrar of Rajapalayam (Sri P. Rajamani) virtually as a Court witness and (ii) for recall of the fourth Defendant (fourth Respondent) and

for permitting him to be further cross-examined in the case. We see no grounds whatever for grant of either of these prayers. If the Sub-Registrar

was not examined by the propounder of the Will, the Appellant is entitled to press that circumstance in his favour, to the extent that he desires to

do so. There are absolutely no grounds for recall of the fourth Defendant who was subjected to elaborate and minute cross-examination in the

case. The petition is dismissed.

Civil Miscellaneous Petition No. 7025 of 1961.--This is a petition for admission into the record of certain formal documents (Interlocutory

Application No. 78 of 1953 in Original Suit No. 5 of 1953, Sub-Court, Ramanathapuram), if necessary, under the provisions of Section 151 and

Order 41, Rule 27, Code of Civil Procedure. We are unable to see any need for this, and the concerned facts of that application are already in the

record. The petition is dismissed.