A learned single Judge of this Court has ordered for grant of probate of a will. One S.P Shanmugha Mudaliar was a businessman in Madras. He executed a registered will on 26-5-1971 in the presence of witnesses making certain dispositions of his properties. On 2-12-1973 he executed a codicil under which he appointed the plaintiffs as the executors of the will. The plaintiffs/respondents then applied for probate. The eldest son of Shanmugha, however, disputed the will. According to him, his father who was aged about 70 years at the relevant time was suffering from cataract, kidney and heart trouble. The 1st plaintiff was looking after the business of the father who was solely dependent on him. The first plaintiff thus was in a position to dominate his father and was exercising undue influence and coercion. The will and the codicil according to him, were executed by Shanmugha only under undue influence and coercion and not out of his own free will or consent or in a sound disposing state of mind. He also maintained that the will was unnatural and artificial as the eldest son has been practically disinherited.

2. In the course of trial it however, transpired that Shanmugha had two wives. When he executed the will under Ex. P2, Shanmugha possessed considerable wealth and properties. Besides, one of the two wives (2nd wife) was alive at that time and he had three sons and seven daughters. The will Ex. P2, was attested by three witnesses besides the scribe. The facts which are not in dispute and are noticed by the learned single Judge in this behalf are that the first attestor was none else than a leading lawyer of this Court, the other was his clerk who had written and attested the will. Besides however, Mr. Ramamurthy Iyer, learned Advocate and Rama Rao, his clerk, there were two other persons, P.Ws 2 and 3 who had attested the will.

3. The plaintiffs examined two attesting witnesses, P.Ws 2 and 3 as the other two, namely, the learned Advocate and his clerk were dead. P.W 2 Ramachandra Chettiar is a businessman having been assessed to income-tax, wealth-tax and corporation tax. He claimed to know the testator for about 35 years. His evidence has been considered by the learned single Judge in these words:

“P.W 2 is running a big fruit stall it Madras which is his ancestral business, and according to him, late Shanmugha was his customer for decades. He would then state that late Shanmugha expressed his desire to execute a Will and requested his presence. Accordingly, the testator sent his car to the residence of P.W 2 and took him to his place. On a Friday at about 9-30 am, P.W 2 went to the testator's house and the Advocate's clerk, Rama Rao, was there. Shortly thereafter, late Advocate Mr. R. Ramamurthy Iyer came to the house of Shanmugha with the will and he read over the will and explained the same to the witnesses, P.Ws 2 and 3. P.W 2 then stated that the testator signed the will in the presence of all the attestors after knowing the contents and thereafter Mr. Ramamurthy Iyer signed it as the first attestor. According to the witness, the other three then signed it and then they all, except the Advocate, went to the Sub Registrar's office, the same day after raghukalam i.e, after 12 noon., at First line Beach, Madras, for registering the same. The witness then said that the registration office is at the upstairs of the building and Shanmugha Mudaliar walked the staircase and P.Ws 3 and 4 identified the testator before the Sub Registrar and they have attested the same. According to the witness, the testator was hale and healthy and was in a sound disposing state of mind and body”.

The other attesting witness P.W 3 was the Manager of the firm S.P Shanmugham and Sons, belonging to late Shanmugha. His evidence has been considered by the learned single Judge in these words:—

“P.W 3 has also spoken to the execution of the will by his master late Shanmugha and subsequently the attestation of the will by late Mr. R. Ramamurthy Iyer, Vakil's clerk P.W 2 and himself. He too accompanied the testator to the Sub Registrar's Office and identified the person before the Sub Registrar. According to this witness, the draft was prepared by the Advocate Mr. Ramamurthy Iyer and it was fair copied by his clerk Rama Rao. Both of them have attested the same. This witness has also stated that the physical condition of the testator at the time of the execution of the will was very sound and the testator used to go to the beach every day in the evening for walking. This witness has stoutly denied that the testator had heart trouble at any time and that he was attending to his business, signing cheques, etc., for several years after the execution of the will. This witness has finally stated that he has attested many documents executed by his master”.

4. It is established on the basis of the evidence aforementioned that the will was not only registered on the same day but also that the testator lived for full ten years after the will. This will was affirmed by another document, Ex. P9, which is a codicil executed by the testator on 2-12-1973. This too has been attested by P.W 2 and P.W 3. The codicil has also been registered.

5. We shall come to the contentions that have been raised before us later. We must at this stage state that the codicil was executed for the reason that no executor was named in the will and therefore, the testator appointed the two plaintiffs as executors. There is yet another fact. The testator has executed settlement deeds subsequently. One such document is Ex. P3. registered settlement deed dated 3-6-1972 under which the testator, Shanmugha, gifted some properties to the first plaintiff, Loganatha. This settlement deed was also attested by P.W 3. The other settlement deeds are Exs. P4 to P6. In these settlement deeds, the will is reaffirmed.

The learned trial Judge has said “that the defendant, as revealed from the counter affidavit, does not seriously question the execution of the will Ex. P2, by his father and his gravamen of attack is that P.W 1, Loganatha, had dominated influence over his father and the will and the codicil were executed under undue influence and that the testator was not in a sound disposing state of mind or in full possession of his faculties with access to independent advice”.

This argument, however, has been rejected by the learned Judge on the ground that both P.Ws 2 and 3 deposed before him that the testator was in a sound disposing state of mind and body and that he had the benefit of the advice of a senior lawyer at Madras, namely, Mr. Ramamurthy Iyer. The testator himself had gone to the Registrar's Office for registration of the two documents, Exs. P. 2 and P. 3 at different intervals. He lived for about ten years after the will and executed a number of documents thereafter.

6. There are documents on record to show that there has been strained relationship between the defendant, the eldest son, and the father (testator). Except the defendant-appellant, no one questioned either the sound disposing state of mind of the testator or the execution of the will being an act of volition of the testator. The defendant admitted that he lived separately from his father who had married a second wife since 1950 onwards.

7. We shall be re-writing the judgment of the trial Court if we do not refer to the contentions raised on behalf of the appellant and deal with the contentions independently. Learned counsel for the appellant has stressed much upon the authority of the Supreme Court in Venkatachaliah v. B.N Thimmajamma . A.I.R 1959 S.C 443.. In a judgment delivered only a few days ago in O.S.A No. 166 of 1983, we have quoted the relevant observations of the Supreme Court and stated how we understand the principles therein. It will be appropriate if we extract the very same passages. The Supreme Court has said:

“It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his hand-writing, and for proving such a hand-writing under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the hand-writing of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression ‘a person of sound mind’ in the context Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writings as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

8. Attacking, however, the proof of the will, learned counsel for the appellant has contended that the two attesting witnesses, who have been examined are not trustworthy. Except this general statement with respect to their testimony, nothing has been shown to suggest that the required proof in accordance with the statute has not been brought on the record of this case by the respondents. In the instant case, the signature of the testator on the will, the writing of the will by the scribe, who is dead and the state of mind of the testator are all duly established by the testimony of the two attesting witnesses. The above quoted principles of law which have been invariably reiterated by the Supreme Court in all subsequent judgments were fully in the mind of the learned trial Judge, who has referred to the citations often brought to the notice in this behalf viz., the judgments in the case of Surendra Pal and Others v. Saraswati Arora (A.I.R 1974 SC 1999) and Afsar Shaikh v. Soleman Bibi. Learned counsel for the appellant, however, has not been satisfied with this only, but has drawn our attention to the other passages in the judgment of the Supreme Court in the case of Venkatachala (supra) wherein it is said:

“However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed from the world, cannot say 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. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. 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. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated”,

and where in a case there are suspicious circumstances according to the Supreme Court:

“The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the attestor may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. 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.”

9. On the touchstone of the above observations of the Supreme Court, we have ourselves repeatedly asked as to what are the suspicious circumstances. Learned counsel appearing for the appellant has reiterated the very circumstances which have been fully adverted to by the learned trial Judge such as the fact that the testator was residing with his second wife at Mylapore and while the executors of the will were frequently visiting him or staying with him the appellant had been living separately and had been kept away from the family affairs. This has been gone into in some detail by the learned single Judge to hold in our opinion rightly, that though they had a common business, all the brothers and father were living separately, which fact is fully established by the evidence of P.W 1, which evidence has remained uncontradicted. The other ground urged has been that the will is unnatural because no provision has been made for all the family members in as much as the appellant has been completely disinherited. This however, has been an argument of desperation in the sense that although in the will nothing has been provided for the appellant, the appellant who never enjoyed the affection of his father (testator), has however not been completely ignored and under the subsequent settlement deed, which we have noticed, substantial property has been given to him by his father (testator). This, however, is no ground to doubt the testament. Unless it is shown that someone was deliberately disinherited under some undue influence or on account of some fraud the court should not deny the will. Except the deposition of D.W 1 in this behalf, there is no other evidence on record and the learned trial Judge has rightly not relied upon his evidence to hold that the testator had no testamentary capacity or that he acted under the undue influence of the executors of the will.

10. For the foregoing reasons, we find no merit in the appeal. The appeal is accordingly dismissed. No costs.

RR/VCS.