Athayee and Others vs Shunmugha Goundan

Veeraswami, J.—This appeal by the Plaintiffs arises out of a suit for partition and separate possession and turns on the validity of a

settlement deed, dated March 12, 1958, and executed by one Nainamalai Gounden. The properties in dispute admittedly belonged to him

absolutely, he having obtained the same as and for his share at a partition on July 15, 1943 between himself and Guruswamy Gounder, his nephew.

Nainamalai died in August 1958, and the Plaintiffs are his widow who died pendente lite and four of his daughters and grandchildren by a

predeceased daughter. The Defendant is also a grandson of Nainamalai by his eldest daughter who too had predeceased him. On her marriage the

eldest daughter with her husband and the Defendant lived with Nainamalai and his wife. A few years before the suit, the Defendant''s mother died

and his father took a second wife from another family with the result he went out of the home of Nainamalai to live separately. But the Defendant

continued to live with Nainamalai, his grandfather and when he came of age he looked after his properties. Four of the Plaintiffs who were

Nainamalai''s daughters had all been married and were living with their relative husbands. On May 21, 1951 Nainamalai executed a Will and

registered the same. Nainamalai was 62 years of age then. By that Will he bequeathed absolutely, after his lifetime, the suit properties in favour of

the Defendant. The testator also made provisions in the Will for payment of a sum of Rs. 1,500 to each of his four daughters and a sum of Rs. 500

to each of his two grandchildren. The testator expressed his hope in the Will that he and his wife would be maintained by the Defendant until their

death and thereafter lie would perform their obsequies. Nainamalai superseded his Will by his settlement deed the provisions of which were

substantially the same as in the Will except that the settlor put the Defendant in possession of the properties immediately and directed him to make

the cash payments as provided in the Will but within a period of two years. The settlor also mentioned that so far as the sixth Plaintiff was

concerned, she had already been paid a sum of Rs. 1,500 by him and therefore he made no further provision for her in the settlement. The Plaintiffs

claim that the Will as well as the settlement were got executed under undue influence, coercion and fraud while Nainamalai was ill, weak of intellect

and feeble in body and mind and that, therefore, the Plaintiffs as well as the Defendant were entitled to share in the suit properties. The suit was

resisted by the Defendant denying the infirmities alleged in respect of the two documents and maintained that in the circumstances of the case it was

quite natural for his grandfather to have executed the Will as also the settlement deed on the terms they contained in his favour and while he was in

a sound and disposing state of mind. Though some argument was addressed to us as if there was any dispute about the execution of the two

documents, it is clear from the pleadings that it was never in issue between the parties. In fact, the plaint proceeded on the footing that Nainamalai

had executed them and the only question raised by the Plaintiffs was that they could have no effect on the grounds above mentioned. There were

other issues relating to the question whether the first Plaintiff or the Defendant was in possession of the properties after the death of Nainamalai.

The Court below found in favour of the Defendant on the issue whether the settlement deed was vitiated by undue influence, coercion and fraud,

as well as the issue relating to possession of the suit properties. It is the propriety of the finding of the Court below as to the validity of the

settlement deed that was under attack before us on behalf of the Appellants.

Mr. Gopalaswami Iyengar, for the Appellants contends that the circumstances of the case clearly show that the Will as well as the settlement

deed were not natural and free dispositions by Nainamalai, but were the result of undue influence and coercion on the part of the Defendant.

Learned Counsel says that there was no reason for Nainamalai to distinguish and differentiate between his heirs and make an exclusive preference

in favour of the Defendant to the detriment of his own daughters and other grandchildren by them. Before the Will and settlement deeds were

executed, the evidence is that Nainamalai consulted two lawyers at Salem and they were, in fact, drafted with their assistance. The argument for

the Appellants before us is that the omission to examine the lawyers, who would give best evidence as to the mental capacity of Nainamalai at the

time he executed the documents is a significant fact which goes a long way to probabilise the case of the Appellants that Nainamalai was not of a

free and disposing state of mind at the time of the execution of the documents. Further, according to Counsel, the attestors who have been

examined at the trial by the Defendant are only those who were interested or related to him and the independent attestors to the documents have

not been examined. Nor, according to Counsel, was any independent evidence directed to prove the circumstances which made Nainamalai prefer

the Defendant as the sole object of his bounty ignoring the welfare of his daughters and other grandchildren. The two documents, according to the

Appellants, were executed in secrecy; the original drafts never saw the light of day and neither Nainamalai nor any one made known to others the

existence of the two documents until the settlor''s death. Finally Counsel for the Appellants urges that this is a case in which the Defendant himself

participated in the steps for execution of the two documents and he was also a substantial, if not the sole, beneficiary, and that being the case not

only was the Defendant bound to prove the execution of the two documents and the sound and disposing state of mind of the executant, but he

was also bound to remove the suspicion arising out the fact that he was a participant in the execution and recipient of a substantial bounty under the

documents. On the other hand, Sri Ramamurthi Iyer for the Defendant would say that the Will as well as the settlement were the most natural

because the Defendant was born in the house of Nainamalai and ever since has been living with him, managing his properties when he came of age

and thus became the most loved of the grandchildren. Learned Counsel would concede that Nainamalai was no doubt affectionate towards his

daughters and other grandchildren, but he would urge that the evidence would bear out that he was more affectionate, attached and devoted to the

Defendant who was brought up by Nainamalai and his wife and who was part of the household assisting them in their old age. It is further urged by

Mr. Ramamurthi Iyer that there is nothing in the record of evidence to show that Nainamalai was not in a sound and disposing state of mind and

that, on the other hand, the whole evidence would tend to show that at all material times his only ailment was either headache or trouble with the

eye or rheumatic pain in the leg so that his mental powers were quite sound and he could discriminate and was in a position to appreciate the

disposition he made by the Will as well as the settlement. Learned Counsel for the Respondent would also say that what the Court has to decide is

whether the settlement is affected by any infirmity alleged by the Plaintiffs and no question directly arose in respect of the validity of the Will except

that it will have a bearing on the probability, truth and validity of the settlement itself. We shall presently proceed to consider these rival contentions.

Before we do so we would like to refer to the well settled rules relating to the proof of a Will or a settlement deed. The onus probandi is on the

pro-pounder of the Will. By clear evidence he has to establish that the Will was executed by the testator and that at the time of its execution he

was a free agent and possessed of a sound and disposing state of mind. It makes no difference to this burden whether the propounder is a

Petitioner in a probate proceeding or a Defendant in a suit involving in hiss defence propounding the Will. Where the propounder is shown to have

participated in the execution of the Will in the sense that he actively assisted the executant, and also obtained a bounty, substantial or otherwise,

under the Will, these circumstances raise a suspicion which in order the Court may uphold the Will the propounder will have to remove. These

rules were laid down by English Courts as early as 1838 which have throughout been followed by generations of judges in this country too. In

Barry v. Butlin (1838) 2 Moores P.C. 480 the rules were formulated thus at page 482:

...the first that the onus probandi lies in every ease upon the party propounding a Will; and he must satisfy the conscience of the Court that the

instrument so propounded is the last Will of a free and capable Testator.

The second is, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the

suspicion of the Court, and-calls upon it to be vigilant and zealous in examining the evidence in support of the instrument, in favour of which it ought

not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the

deceased.

In the same case there was a further observation that:

the onus of proof may be increased by circumstances, such as unbounded confidence in the drawer of the will, extreme debility in the testator,

clandestinity, and other circumstances which may increase the presumption even so much as to be conclusive against the instrument.

These rules were considered by the Judicial Committee in Harmes v. Hinkson (1946) 2 M.L.J. 156, 163 (P.C.) which was an appeal from the

Supreme Court of Canada, and explained. There the Privy Council pointed out onus in this context as a determining-factor of the case can only

arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no conclusion. In such a case the onus, of course, will

decide the matter. Whether or not the onus is satisfied will of course, be a question of fact in each case. As to the second rule, the Privy Council

observes:

The second rule has commended itself to many generations of judges and has thus rightly acquired the status of a rule of law, but it is no more than

an application to particular circumstances of a principle which may be supposed to guide all persons of prudence and good sense in their ordinary

affairs. The principle is that when the only man who can prove a fact has a strong motive for asserting it, his evidence must be received with greater

caution than that of a disinterested witness and that every circumstances of legitimate suspicion which is found to exist must make any reasonable

man less ready to accept his uncorroborated testimony. The rule applies this general principle to the particular case of a will. It warns the Judge

that, in circumstances such as exist in the present case, the evidence of the witness who drew the will must be received with caution, but this does

not mean that it must be rejected altogether. The burden of proof may be discharged. The adverse presumption may be rebutted.

These principles were substantially reiterated and affirmed as applicable to proof of Wills in this country by the Supreme Court in H. Venkatachala

Iyengar v. B.N. Thimmajamma and Ors. (1959) 1 S.C.R. 426, 443 (Supp.). The Supreme Court observed:

The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant

time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the Document

of his own free will.

When this is done the onus as to the first rule of proof of Wills is satisfied. But if suspicious circumstances are present which would include the case

of a propounder taking a prominent part in the execution of the Will which confers a substantial benefit on him, the Court would naturally expect

that such suspicion should be completely removed before the Will is accepted as the last Will and testament of the testator.

While Mr. Ramamurthi Iyer for the Defendant does not dispute these rules on proof as well settled in respect of Wills he argues that there is in

this case hardly any question of propounding a Will as the Defendant''s claim to the suit properties is solely rested on the settlement deed of

Nainamalai. He submits that in such a case the rules of proof are not the same as applicable to Wills, and refers us to the following observation of

the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. (1959) 1 S.C.R. 426, 443 (Supp.).

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 before a Court, the testator who has already departed the world cannot gay whether it is his will or not;

and this aspect naturally introduces an 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.

We think there is force in the contention that the rules of proof of Wills and other documents cannot be the same as in the very nature of things a

Will differs in many respects from other documents of conveyance like a gift, settlement deed or a sale. In the case of the former the question

always would arise after the death of the testator because the Will takes effect as on his death unlike a conveyance which takes effect according to

its tenor immediately or on a specified date. Of course, in the case of a Will as well as a settlement deed, the person who relies on either will have

to prove its execution, that is to say, that the executant signed the document and it was duly attested. But once that is done, we do not think that

the person who relies on a settlement deed would be further called upon to show that the executant executed the document while he was in a

sound and disposing state of mind. Where the fact is disputed it is the party who asserts it that will have to prove it. Where the execution is proved

it may well be taken for granted in the case of a conveyance of settlement deed that the executant knew its contents and was capable mentally and

otherwise of making the disposition and understanding the same, unless the person asserting to the contrary establishes his case. But when all these

rules are stated, their significance, as we think, is confined to a stage where the evidence at a trial is so evenly balanced that it has necessarily to

decide on the question of onus as to whether it has been discharged by the party on whom it lies. But where the effect of the entire evidence on

record is assessed and the balance is entirely in one way, the importance of the onus recedes to the background.

We shall now direct our attention to the evidence in this case. It would be clear by now that the only question that we have to consider is

whether on the evidence it can be held that the settlement deed was executed by Nainamalai while he was in a sound and disposing state of mind.

The question whether the Will was executed while the testator was in a sound and disposing state of mind is of secondary significance and has no

direct bearing upon the Defendant''s claim based upon the settlement deed and the relevance of the Will lies only in the fact that it will go to some

extent in probabilising the naturalness of the provisions of the settlement. We shall however, refer to the evidence in relation to the execution of the

Will. We have already briefly referred to its provisions. The Will was executed and registered at Salem. It was attested by three persons of whom

only D.W.2 has been examined. The circumstances under which the Will was executed have been recounted by the Defendant himself in his

evidence. At the time of the execution of the Will the testator was 62 years of age. Accompanied by his grandson, the Defendant, Nainamalai went

to Salem and consulted one Sri Audinarayana Chettiar, a practising lawyer. At the time of consultation there was none else. On instructions given

by Nainamalai, the lawyer wrote the Will Peria Goundan (D.W. 2) and one Ramaiah Gounden attested the Will. Nainamalai himself presented the

document for registration and one Guruswamy Mudaliar of Gurusamipalayam indentified the testator at the registration. As to the mental condition

of the testator the Defendant would say that he was in a sound and disposing state of mind. According to his evidence it was not true that he was

unable to walk, weak or was in any way unsteady of mind. The Defendant is supported by D.W. 2, the attestor, so far as the actual execution of

the Will was concerned. As regards the execution of the settlement deed also the evidence of the Defendant is much the same. He asserted that it

was Nainamalai who gave instructions to the lawyer Sri Lakshmana Iyer at Salem to draft the settlement deed and that at the time of the execution

of the settlement deed too he was in a sound and disposing state of mind. The settlement deed has been attested by three witnesses including D.W.

4 a nephew of the Defendant. The writer of the settlement deed also has given evidence. The former here again supported the Defendant and

stated that, Nainamalai whom he had accompanied to the lawyer''s house himself gave instructions to the lawyer and executed the settlement deed

while in a sound and disposing state of mind. D.Ws. 1 and 4 denied that Nainamalai, at the time he executed the Will or the settlement deed, was

suffering from any serious ailment which would affect his mental powers. The widow of Nainamalai in her evidence did not claim that he was at the

time mentally weak or unable to understand what was what. All that she stated was that he was old and infirm, his eyes were watering, body

paining and had headache. She also mentioned that before execution of the settlement deed he had been confined to bed for some time and was

not moving about. A homoepathic physician (P.W. 5) was examined for the Plaintiff who was supposed to have treated Nainamalai. It is significant

that this witness too never attributed any mental ailment to Nainamalai so as to deprive him of his faculties of discrimination and understanding of

the nature of the dispositions he made under the Will as well as the settlement. This physician merely mentioned that Nainamalai''s eyes were

watering and he had to be lifted. One of the daughters of Nainamalai, the sixth Plaintiff, also gave evidence, but she too never stated that there was

anything wrong with the mental capacity of Nainamalai. Surveying this evidence we have referred to as a whole, all that it amounts to is that

Nainamalai was 62 years of age when he executed the Will, and was about 69 when he executed the settlement deed and on neither occasion

there was anything wrong with his mental capacity and that all he suffered from was old age, watering in the eyes, headache and bodily pain. We

are, therefore, inclined to agree with the trial Judge that Nainamalai was in a sound and disposing state of mind both at the time he executed the

Will as well as the settlement.

We are not satisfied that Nainamalai had no reason to make a preference in favour of the Defendant. The evidence clearly shows that from his

birth the Defendant was living with Nainamalai and his wife and, in fact, he was brought up by them and in later years he was of assistance to

Nainamalai and his wife. He was also managing his properties. It may be that Nainamalai was affectionate towards his daughters and other

grandchildren. But in view of the circumstances we have just now mentioned it is probable that Nainamalai had greater affection and attachment to

the Defendant. Further when we look at the terms of the disposition, it is obvious that Nainamalai had not actually discriminated between his

daughters and other grandchildren and the Defendant. He made provisions for all of them. The properties which Nainamalai bequeathed or settled

in favour of the Defendant consisted of four acres of garden land and two acres of punja. Whether they were worth Rs. 15,000 or Rs. 30,000 at

material times, Nainamalai directed both under the Will as well as the settlement payment to each daughter a sum of Rs. 1,500. That being the

case, it seems to us that the criticism that Nainamalai discriminated between the Defendant on the one hand, and the rest of the members of his

family on the other cannot be accepted. It is true the two lawyers whom Nainamalai appears to have consulted at Salem have not been examined.

It would have been better if they had been. As a matter of fact, Mr. Ramamurthi Iyer conceded so much. But as contended by him, the omission to

examine the lawyers makes no material difference to the conclusion that this Court has to arrive at. When the evidence on record is regarded as a

whole, it does not appear to us that the failure to examine-the lawyers in itself is of the much consequence. We see that D.W. 4 is a nephew of the

Defendant and may be interested in him, and so too D.W. 2 may be interested in the Defendant. But these two witnesses mainly speak about the

execution of either the Will or the settlement deed about which, as we said, there is no dispute. We are unable to accept the contention of Sri

Gopalaswami Iyengar that there was no independent witness to prove the fact that Nainamalai was more attached to the Defendant. The whole

circumstances of the case show that beyond doubt. Even in the plaint it was admitted that the Defendant was brought up by Nainamalai and his

wife. The first Plaintiff brought the Defendant to her house according to the plaint and stayed with her and her husband up to his death. In her

evidence the first Plaintiff further admitted that the Defendant, while living with her and her husband, looked after the properties. Those

circumstances would show that Nainamalai had reason to prefer the Defendant. Some comment was made on behalf of the Appellants that the Will

as well as the settlement deed were executed in secrecy and no one knew about them until Nainamalai died. But one has only to peruse the

evidence of the first Plaintiff, the widow of Nainamalai, to be convinced that far from there being any secrecy, Nainamalai before he left for Salem

to execute the Will mentioned to her that he should give shares to his daughters as well as the Defendant.

Even assuming, on account of the fact that the Defendant took an active part in the execution of the settlement deed and obtained a substantial

benefit under it, that suspicion is raised, that is entirely removed by the evidence on record read as a whole. We are, therefore, of the opinion that

the trial Judge came to the correct conclusion as to the validity of the settlement deed and that it was executed by Nainamalai when he was in a

sound and disposing state of mind and that it was not the result of undue influence, coercion or fraud on the part of the Defendant.

The appeal fails and is dismissed with costs.