Case: Gorantla Thataiah Vs. Thotakura Venkata Subbaiah &amp; Ors

its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased." According to the decision in Fulton v. Andrew, (1875) 7 HL 448, those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin, (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by Baron Parke are :"first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party 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 Sarat Kumari Bibi v. Sakhi Chand, 56 Ind App 62 = (AIR 1929 PC 45 ) the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicious from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator". This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton, 1894 P 151 at pp. 157, 159."The rule in (1838) 2 Moo PC 480 1875) 7 HL 948; and Brown v. Fisher (1890) 63 LT 465 is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to the case made for proving the will." "It must not be supposed the principle in (1838) 2 Moo PC 480 is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed." (Davey L. J.). 7. It is in the light of these principles that the evidence adduced in this case will have to be considered. As we have already pointed out, there is abundant testimony in this case which proves beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will. It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and procuring the writing materials for the execution of the will. There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiahs death the first defendant brought Rattamma and Veeriah to his house and was looking after them. The first defendant had therefore considerable influence over Veeriah and his another Rattamma. There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding. Having regard to the cumulative effect of all the circumstances we are of opinion that the will, Ex. B-4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. We accordingly set aside the finding of the High Court on this issue. 8. It is, however, not possible for us to finally dispose of this appeal because the High Court has not examined the second question arising in this case, namely, whether the Hindu Succession Act (Act XXX of 1956) is applicable to the case, and whether defendant No l was the nearest heir to succeed to the estate of the deceased Veeriah in preference to all others including the appellant, defendants 9 and 10.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. It is well established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must he judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner7. It is in the light of these principles that the evidence adduced in this case will have to be considered. As we have already pointed out, there is abundant testimony in this case which proves beyond doubt that the testator was physically in a weak condition and that he was in a delirious state of mind at the time of the execution of the will. It is admitted that the first defendant took a prominent part in summoning the attesting witnesses and the scribe and procuring the writing materials for the execution of the will. There is also evidence that Veeriah lost his father, Gangiah when he was hardly 10 years of age and after Gangiahs death the first defendant brought Rattamma and Veeriah to his house and was looking after them. The first defendant had therefore considerable influence over Veeriah and his another Rattamma. There is also the circumstance that Veeriah was only 24 years of age at the time of the execution of the will and he was slow witted and below the average level of intelligence and understanding. Having regard to the cumulative effect of all the circumstances we are of opinion that the will, Ex. B-4 was not executed by Veeriah in a sound and disposing state of mind and was not legally valid and binding upon the plaintiff. We accordingly set aside the finding of the High Court on this issue8. It is, however, not possible for us to finally dispose of this appeal because the High Court has not examined the second question arising in this case, namely,whether the Hindu Succession Act (Act XXX of 1956) is applicable to the case, and whether defendant No l was the nearest heir to succeed to the estate of the deceased Veeriah in preference to all others including the appellant, defendants 9 and 10.