Case: H. Venkatachala Iyengar Vs. B.N. Thimmajamma &amp; Others

1. This appeal arises from a suit brought by the appellant in the Court of the Subordinate Judge, Mysore, as the sole executor of the will alleged to have been executed by one Lakshmamma on 22nd August 1945, (Ex. A). In this suit the appellant claimed a declaration that the said Lakshmamma was the owner of the properties mentioned in the schedule attached to the plaint and as such was entitled to dispose of them by a will; and he asked for consequential reliefs purporting to give effect to the bequests made by the said will. The schedule attached to the plaint describes the properties covered by the will under five items. First three items in the schedule refer respectively to 5, 4 and 4 agricultural lands at Hampapura village, whereas the fourth item includes 9 lands at Arjunahalli village and the last item is a vacant site in Hampapura village. According to the plaint, under the will respondent 1 was entitled only to a life interest in items 1 and 2 and that on her death the said items would vest in respondents 2 to 4 and respondent 5 respectively. Since respondent 1 was in possession of all the five items, the appellant claimed a decree for possession against respondent 1 in respect of items 3, 4 and 5 and a declaration that respondent 1 was to have only a life interest in items 1 and 2. By his plaint the appellant also claimed to recover Rs. 2,100 which had been collected by respondent 1 by way of income from the suit lands and a further prayer was made for the payment of current mesne profits by respondent 1.2. Before referring to the pleadings of the parties it would be relevant to mention the material facts in regard to their relationship which are not in dispute. One Annaji Iyengar who died in July 1903 left behind him is adopted son, the appellant, and two daughters Gundamma alias Ranganayakamma who is still alive and Lakshmamma alias Achamma who is alleged to have executed the will in suit and died thereafter on 26th September 1945, at Mandya. Respondents 2 to 4 are the sons of the appellant. Lakshmamma was married to Sadagopalachar who died in December 1908. The couple had three children, a son named Narayana Iyengar who died on 14th January 1944, without any issue and left behind him his widow respondent 1; and the two remaining children of Lakshmamma were daughters Thirumalamma and Yadugiramma. Both of them are dead. Thirumalamma was married to one G. Parthasarathy Iyengar by whom she had a son of weak intellect, who died pending litigation, and three daughters Neelu, Jaya and Padmini. Yadugiramma was married to Kalbagal Garudachar and by him she had a son Narasimha Iyengar, respondent 5, and daughter Lilly. Kalbagal Garudachar had a son S. G. Kalbagal (hereinafter described as Junior Kalbagal) from his first wife. Jaya was married to Kalbagal Junior. The claim made by the appellant under the will is resisted by respondent 1. Respondents 2 to 5 have not appeared in the proceedings.3. According to the case set out by the appellant in his plaint Annaji Iyengar had made a gift of properties, items 1 an 2, in favour jointly of Lakshmamma and Sadagopalachar under a registered deed of gift on 16th February 1902 (Ex. D). It was also alleged that the said Annaji Iyengar had executed a will on 31st August 1901, (Ex. B2(a)) under which he had bequeathed in favour of Lakshmamma and Sadagopalachar hypothecation bonds to the extent of Rs.10,320 as gift with the express stipulation that the survivor of the legatees should take the whole of the bequest by survivorship. The appellant alleged that Sadagopalachar was a man of very moderate means and had given up his petty job in the registration department in order to manage the properties received by him and his wife from Annaji Iyengar. During the course of the management Sadagopalachar used the cash of rupees 10,320 received by bequest under the will of Annaji Iyengar to buy some immoveable properties including items 3 and 4. Since Sadagopalachar pre-deceased his wife Lakshmamma, all his rights in the properties acquired under the gift deed as well as those subsequently purchased devolved on Lakshmamma alone by survivorship. That is how she became the absolute owner of the said properties. Alternatively it was alleged by the appellant that even if survivorship did not apply and so her son Narayana Iyengar acquired interest to half the share in the properties covered by the gift deed, he had during his lifetime sold away considerable properties of his father and mother much above the value of his half share and in consequence the remaining properties which represent Lakshmammas half share became her absolute properties. On this alternative ground the absolute title of Lakshmamma with regard to all the properties in suit was set up. The appellant thus claimed that Lakshmamma was entitled to make a will and asked for a declaration in that behalf and consequential reliefs so as to give effect to the terms and dispositions of the will. According to the appellant the will propounded by him was the last testament of Lakshmamma and it had been executed by her voluntarily and of her own free will while she was in a sound and disposing state of mind.4. Respondent 1 disputed the appellants claim. She denied that Annaji Iyengar had made a will on 31st August 1901, or that Lakshmamma and Sadagopalachar had received the moveables of the value of Rupees 10,320 under it. According to her, the gift deed (Ex. D) did not provide for devolution of interest by survivorship; she pleaded that Lakshmamma had transferred all her interests in the properties comprised in the gift deed in favour of her husband Sadagopalachar who then became their sole owner. Respondent 1 did not admit that the properties subsequently purchased by Sadagopalachar including items 3 to 5 were purchased with any monies bequeathed to him and his wife by Annaji Iyengar; according to her, Sadagopalachar had made these purchases with his own funds. Respondent ls case was that, after the death of his father Sadagopalachar, her husband Narayana Iyengar became the absolute owner of all the properties and so Lakshmamma was not competent in law to make a will in respect of any of them. She further alleged that the will set up by the appellant was not genuine or valid and that at the material time Lakshmamma was not in a sound and disposing state of mind. She contended that the will had been brought into existence through the machinations of the appellant and she disputed the appellants right to bring the present suit.5. On these pleadings the learned trial Judge framed fifteen issues. He found that the will executed by Annaji Iyengar on August 31, 1901, was genuine and valid; and that the rule of survivorship was applicable as between the legatees inter se in respect of the properties conveyed by the said will. It was, however, held that the rule of survivorship did not apply to the properties gifted to Sadagopalachar and Lakshmamma under Annajis deed of gift (Ex. D) which was held to be genuine and valid. In regard to the properties subsequently purchased by Sadagopalachar the learned Judge said that "in fairness to the parties he would like to hold that various survey numbers in items 3 and 4 had been purchased by Sadagopalachar out of the joint income from the properties bequeathed to him and his wife by Annaji as also from the properties and through income which he got at a partition between himself and his coparceners" (Ex. F). The purchases made by Narayana Iyengar were held to have been made out of the income of the properties of his father and of his mother. The learned Judge rejected the plaintiffs case that Narayana Iyengar had disposed of his properties equivalent to his right under the gift deed of Annaji (Ex. D) and held that he was the owner of the properties which had vested in his father. In the result, according to the learned Judge, Lakshmamma had a half share in all the properties in suit and so she was competent to make the will in respect of the said share. The learned Judge then considered the question as to the execution of the will set up by the appellant and came to the conclusion that the will (Ex. A) was genuine and valid to the extent of the share belonging to the testatrix. The learned Judge also found that the suit was maintainable, was not barred by time and had been properly filed. As a result of these findings the learned Judge declared that Lakshmamma was the full owner of half the share in the scheduled properties and that respondent 1 under the will had only a life interest in respect of the said half share in items 1 and 2. As a consequence of this declaration the decree passed by the learned Judge directed respondent 1 to put the appellant in possession of Lakshmammas half share in items 3, 4 and 5; it also ordered respondent 1 to pay to the appellant a sum of Rs. 1,050 out of the past mesne profits recovered by her. An enquiry into future mesne profits was also directed under O. XX, R. 12. In view of the fact that the appellant had succeeded only in regard to half the properties in suit the decree asked the parties to bear their own costs.6. Against this decree respondent 1 preferred an appeal in the High Court of Mysore; and the appellant filed cross objections. The High Court held that the appellant had not established that when Lakshmamma was alleged to have executed the will she was in a sound and disposing state of mind or that it was her will in the sense that it represented her intentions. According to the High Court, in the light of this finding "it might be unnecessary to consider the other issues in the case." Even so the High Court proceeded to indicate its conclusions on two of such issues. It held that the appellant had entirely failed to prove that the money for the purchase of items 3, 4 and 5 came out of any bequest under Annajis will (Ex. B-2 (a)) or the incomes from the properties covered by the gift deed (Ex. D) and so in its opinion Lakshmamma could not claim any share in the said properties. On the other hand, the High Court indicated that it was inclined to accept the plea raised by respondent 1 that Lakshniamma had transferred all her interest in the properties comprised in the said deed of gift in favour of her husband Sadagopalachar; and since in its opinion "Lakshmamma at no time appears to have claimed that she had any interest in those properties, there was considerable force in the argument urged by respondent 1 that Lakshmamma must have relinquished her interest in the said properties and waived her rights in favour of her husband." The High Court thought that the learned trial Judge had not fully considered all the material bearing on this point and so was in error in holding that at the relevant date Lakshmamma had a subsisting interest in half the share even in the suit properties, items 1 and 2. Having thus indicated its decision on the two issues the High Court has observed that even if it had found in favour of the appellant on these two points it would not have been of any help to him because his case must inevitably fail when it is held that the will set up by him was not proved to be the last will and testament of Lakshniamma. In the result the appeal preferred by respondent 1 was allowed, the cross-objections filed by the appellant were rejected and his suit was dismissed. In the circumstances of the case the High Court made no orders as to costs.7. The appellant then applied for and obtained a certificate from the High Court that the decision under appeal is one of reversal and it involves a claim respecting properties of the value of not less than Rs. 20,000. In pursuance of this certificate the High Court ordered that the appeal to this Court should be admitted; and so this appeal has come to this Court.

Reasoning:
24. It would, therefore, be necessary at this stage to decide whether an execution of the will in the present case is surrounded by any suspicious circumstances. Does the will appear to be on the whole an improbable, unnatural and unfair instrument as held by the High Court ? That is the first question which falls to be considered. We have already indicated that the preamble to the will contains many argumentative recitals. Indeed it would not be unjust to say that the preamble purports to meet by anticipation the main objections which were likely to be raised to the competence of Lakshmamma to make a will in regard to the properties covered by it. The preamble in great detail makes out a case that the properties received by the testatrix and her husband under the gift deed (Ex. D) devolved upon her by survivorship after her husbands death, a plea which has not been accepted even by the trial Court. It also seeks to prove that the subsequent purchases made by her husband were in law the joint acquisitions of her husband and herself, a point on which the two courts below have differed. It sets out in detail the theory that the son of the testatrix has lost his right, title and interest in the properties which devolved on him after his fathers death because he had alienated more than his share in the said properties during his lifetime; and it even suggests that during his illness and to help him to build a house in Mysore the testatrix had advanced him money from her separate funds, pleas which have not been accepted by either Court below. It seems to us that the elaborate and well considered recitals which have been deliberately introduced in the preamble cannot possibly be the result of corresponding instructions given by the testatrix to the appellant for preparing the draft of her will. In the context these recitals sound artificial and unnatural and some of them at any rate are untrue. The draftsman of the will has tried to be over-wise and that itself is a very serious infirmity in the appellants case that the instrument represents the last will and testament of the testatrix. Take for instance the statement in the will that the testatrix had advanced Rs. 3,000 to her son to enable him to purchase a house at Mysore. By itself this is not a matter of very great importance; but this detail has been introduced in the will in order to make out a strong case that all the properties mentioned in the will were the separate properties of the testatrix and so it would be relevant to consider what the appellant himself has to say about this recital. In regard to the Rs. 3,000 in cross-examination the appellant has stated that Mr. B. G. Ramakrishna Iyengar had sent this amount to the husband of respondent 1 in 1942 or so. It was sent by cheque on Mysore Bank. The appellant then added that the husband of respondent 1 had deposited this amount with B.G. Ramakrishna Iyengars father-in-law after selling Goudanahalli lands with intent to purchase lands at Mysore; so that the claim made in the will that the testatrix had given this amount to her son out of her separate funds is inaccurate. The manner in which the several recitals have been made in the will amounts to a suspicious circumstance which must be satisfactorily explained by the appellant.25. The next circumstance which calls for an explanation is the exclusion of the grandchildren of the testatrix from any substantial legacies under the will. It is true that a bequest of Rs. 500 each is given to them but that can hardly be regarded as fair or just to these children. It was, however, urged by Mr. Iyengar before its that Narayana Iyengar had, during his lifetime, given lands to his sisters daughters. He had also spent considerable amounts on the occasion of their marriages and had given them each valuable ornaments. In this connection, he referred us to certain documents exhibited under Ex. G and attempted to show that the lands given to his sisters daughters were of the value of its.1,500 to Rs. 2000 each. Apart from the fact that the value of these lands is not clearly proved nor are the circumstances under which they came to be gifted to the donees, we do not think it would be possible to accept the argument that even with these gifts the testatrix would not have thought of making more substantial bequests to her grand-children. It is not suggested that the relations between the testatrix and these grand-children were not cordial and affectionate and so it would he reasonable to assume that they would have been the objects of her bounties in a more liberal measure in ordinary circumstances.26. There is one more point which must be considered in this connection. As we have already mentioned the appellants sons have received substantial bounties under the will. Are these bequests probable and natural ? It must be remembered that the appellant came into the family of Annaji by a option long after the testatrix was married. The record does not show that the testatrix was on such affectionate terms with the appellant that she would have preferred to" make a bequest to his sons rather than to her own grand-children. Indeed the appellant admitted that, at the relevant time, he was in straightened circumstances and was indebted to the extent of nearly Rs. 30,000; and it does not appear that when he was faced with financial difficulties of this magnitude he asked for or obtained any assistance from his adoptive sister. That is why the bequests to the appellants sons also amount to a suspicious circumstance which must be clearly explained by the appellant. We cannot easily reject the argument urged on behalf of respondent 1 that the bequests have been made in the names of the appellants sons because. if they had been made in his own name, the properties bequeathed would have been attached and sold at the instance of his numerous creditors. We do not propose to measure precisely the value of the properties bequeathed to the appellants sons. It would be enough to say that the said bequests are by no means insignificant or unsubstantial. Therefore, we are unable to see how the appellant can successfully challenge the finding of the High Court that some of the broad features of the will appear to be improbable and unfair; and if that be so, the appellant will have to remove the suspicions arising from these features before he can persuade the Court to accept the instrument as the last will and testament of the testatrix.27. In this connection it is necessary to bear in mind that the appellant whose sons have received the said bequests has admittedly taken a very prominent part in bringing about the execution of the will. He has prepared the draft and it was at his dictation that the scribe wrote the will. Indeed on the important question as to when and how instructions were given by the testatrix and whether or not in preparing the draft those instructions have been faithfully carried out, the only evidence adduced in the case is that of the appellant and no one else. Thus, the very important, if not the decisive, part played by the appellant in the execution of the will cannot at all be disputed in the present case.case.36. It is in the light of these decisions that the appellant wants us to consider the evidence which he has adduced in the present case. It would be convenient to begin with the appellants story about the instructions given by the testatrix for preparing the will. In the plaint the appellant has referred to the sudden illness of the testatrix at Mandya and it is alleged that when she took ill the testatrix sent for him with the obvious intention of making arrangements regarding her properties. Accordingly when he met her at Mandya she explained all her intentions to him in the matter of disposing all her properties and her rights thereto. In other words, the case made out in the plaint clearly and specifically is that when the testatrix was ill at Mandya she sent for the appellant and gave him instructions for preparing a draft of her will. However, when the appellant gave evidence he made a material improvement in his story. According to his evidence, the appellant had receive instructions from the testatrix a year before the will was actually drafted. It was then that the testatrix had given him the gift deed (Ex. D) and asked him to prepare the draft. Consistently with this new version the appellant has added in his evidence that when he met her at Mandya during her illness she reminded him that she had asked him to make a will for quite some time and she insisted that the draft should be prepared without any delay. In our opinion, the evidence given by the appellant on this point is clearly an after-thought and his story that he had received previous instructions cannot be accepted as true. Besides, it is somewhat remarkable that, on both the occasions when the testatrix talked to the appellant and gave instructions to him, no one else was present; and so the proof of this part of the appellants case rests solely on his own testimony. If the testatrix had really thought of making a will for over a year before it was actually executed, it is unlikely that she would not have talked about it to other relatives including Kalbagal with whom she was actually staying at the material time.37. Then it would be necessary to enquire whether the draft which the appellant prepared was consistent with the instructions alleged to have been given by the testatrix. The draft, however, has not been produced in the case on the plea that it had been destroyed; nor is it specifically stated by the appellant that this draft was read out fully to the testatrix before he dictated the contents of the will to the scribe. Thus even the interested testimony of the appellant does not show that he obtained approval of the draft from the testatrix after reading it out fully to her clause by clause. It is common ground that Mandya where the testatrix was lying ill is a place where the assistance of local lawyers would have been easily available; and in ordinary course the testatrix would have talked to Kalbagal and the appellant and they would have secured the assistance of the lawyers for drafting the will; but that is not what the appellant did. He went to Mysore and if his evidence is to be believed he prepared the draft without any legal assistance. Having regard to the nature of the recitals contained in the will it is not easy to accept this part of the appellants case. Besides, as we have already indicated, we find great difficulty in believing that the elaborate recitals could have been the result of the instructions given by the testatrix herself.38. It is in the light of these circumstances that the direct evidence about the execution of the will has to be considered. The evidence of P. W. 1 is really inconclusive on the point about the execution of the will. Apart from the fact that he had no clear recollection as to what happened on the day when he attested the will , this witness has frankly stated that he could not state definitely whether the whole of the document was read over to the testatrix before he put the attesting signature; and it was naturally of very great importance in this case to produce satisfactory evidence that the will was read out to the testatrix and she understood the nature and effect of its contents. On this point even if P. W. 1 is believed it does not help the appellants case. The evidence of P. W. 2 cannot carry much weight because his main story that he was present at the time when the will was written is wholly inconsistent with the evidence of P. Ws. 3, 4 and 7. That leaves the evidence of the scribe and the appellant himself. The scribe (P. W. 3) is a near relation of Kalbagal and even he does not at all support the appellants case about previous instruction because, according to him, the testatrix said that she would agree to whatever the appellant would get written. The relevant evidence of this witness is clearly inconsistent with the appellants case about previous instructions and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testatrix fully understood the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will. The evidence of the appellant (P. W. 7) cannot obviously be useful because it is the evidence of an interested witness and is besides not very satisfactory. On behalf of the appellant it was urged before us by Mr. Iyengar that the evidence of Kalbagal (P.W. 4) is disinterested and so it should be believed. That also appears to be the view taken by the trial Court. In our opinion, however, it would not be right or correct to describe Kalbagal as wholly disinterested. Respondent No. 5 who is the step-brother of Kalbagal and who stays with him in the same house along with their father has admittedly received substantial benefit under the will. If an undivided brother of P. W. 4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagals evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect before it was signed by her. That is the whole of the evidence led by the appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions.39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390   : (A I R 1929 Cal 484  ).In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated.That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial.On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.40. Before we part with this case, however, we would like to add that the High Court was not justified in recording its findings on two other issues in the present appeal. As we have already indicated, the High Court itself has observed that, once it was held that the will had not been proved by the appellant, no other issue survived for decision. Even so, the High Court has expressed its conclusions in favour of respondent 1 on the question about the character of the subsequent acquisitions of items 3, 4 and 5 and about the subsisting title of the testatrix in respect of all the properties covered by the will. Having regard to the relationship between the parties it is difficult to understand how mere entries in the revenue record made in the name of Sadagpalachar or the long possession of Sadagopalachar and, after his death, of Narayana Iyengar can prove the transfer of Lakshmammas title or its extinction by adverse possession respectively. It is apparent that, in recording these conclusions, the High Court has not fully or properly considered all the relevant evidence; and consequently, the reasons given by it are open to serious challenge on the merits. Indeed Mr. Viswanatha Sastri did not appear to be inclined to support the said findings. We do not, however, propose to decide these questions on the merits because in view of our conclusion on the principal issue it is unnecessary to consider any other points. We would, therefore, like to make it clear that the said two issues are not decided in the present proceedings and may have to be considered afresh between the parties if and when they arise.