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Ganpatrao Khandero v. Vasantrao Ganpatrao Caveator.

Bombay High Court

Jun 29, 1931

Judgment

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Analytical Summary of Opinion — Probate Petition for the Will of Sonabai

Factual and Procedural Background

This is a petition for probate of the last will and testament of Sonabai, who died at Bombay on 26 November 1930. The will is dated 18 July 1930. The petitioners are: (1) Rao Saheb Ganpatrao Khanderao Vijayakar (the deceased's husband and described as the first petitioner) and (2) the deceased's son-in-law (husband of the deceased's predeceased daughter Sundrabai). The petitioners act as executors of the will. Sundrabai had died in 1925 leaving a son, Vasudeo, who was then a minor. The caveator is Vasantrao, the only son of the deceased and of petitioner 1.

The caveator filed an affidavit alleging (a) the will propounded by the petitioners is not the deceased's will, (b) the signature on the will is not hers, (c) she was demented and of weak/inert mind from April 1928 until her death, and (d) the will was executed under undue influence of the petitioners. The will is in Marathi except for the attesting clause (in English) and was attested by two advocates of the Court.

Evidence led for the petitioners described the genesis and execution of the will: in June 1930 at Lonavla the deceased wrote "heads of instructions" in her handwriting; petitioner 1 later prepared a fair draft from those heads in Bombay (with minor verbal alterations by a clerk, Mr. Narayan Jayakar); the will was engrossed and brought to Mr. Bamji's office for execution on 18 July 1930 in the afternoon. The deceased signed the will as "Sonabai Ganpatrao" in the presence of two attesting advocates, who testified to having seen her sign. The will papers were initialled, blanks crossed out and initialled by the witnesses, and endorsements were signed and attested. Probate was sought and the caveator opposed the petition on the grounds stated above.

Legal Issues Presented

Whether the document propounded is the genuine last will and testament of the deceased (i.e., whether the signature on the will is hers).
Whether the deceased had the requisite testamentary capacity at the date of execution (i.e., whether she was of sound disposing mind and understood and approved the will).
Whether the will was executed under undue influence exercised by the petitioners (or either of them).
On the basis of the above, whether the will should be admitted to probate.

Arguments of the Parties

Petitioners' Arguments

The deceased prepared "heads of instructions" in her own handwriting and later gave the fair draft to her husband; the will was thereby prepared according to her instructions.
The will was duly executed on 18 July 1930: the deceased signed in the presence of two independent attesting advocates who swore they saw her sign.
The deceased could read and write Marathi and there was no reason to believe the will had not been read by her at some time prior to execution.
All usual formalities were observed (initialling, crossing out blanks, attestation by witnesses, diary entry by Mr. Bamji noting the attestation).
The petitioners (who take benefit under the will) offered the attesting witnesses' evidence and documentary material to establish genuineness and capacity.

Caveator's Arguments

The will propounded is not the deceased's will and does not bear her genuine signature.
Since April 1928 the deceased was demented and of weak/inert mind and thereby lacked testamentary capacity to understand or approve the dispositions in the will.
The will was executed under undue influence of the petitioners (or either of them).
The caveator sought to challenge the handwriting/signature and indicated an intention to call expert evidence to show differences between the signature on the will and admitted signatures.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Balkrishna v. Gopihabai	Where a testator's sanity is disputed, the person propounding the will must prove affirmatively the testator was of sound mind at execution and knew, understood and approved the contents.	The Court relied on this principle in framing the burden of proof on the propounders when sanity is challenged; the Court applied evidence to conclude petitioners satisfied the requirement.
Barry v. Butlin	Where the person propounding the will takes an appreciable benefit, that circumstance creates suspicion and increases the burden on the propounder to prove genuineness.	The Court noted this principle as part of established rules about suspicious circumstances; it required the petitioners to lead sufficient evidence to remove such suspicion.
Vellasawmy Servai v. Sivaraman Servai	Same rule as Barry v. Butlin regarding the element of suspicion when a propounder benefits under the will.	Referenced by the Court among authorities setting out the weight to be given to suspicious circumstances and burden on propounder.
Mallappa v. Tipava	Illustrated a case with many elements creating suspicion (including a false statement in the will that the testator could not have made).	The Court distinguished the present case from Mallappa v. Tipava, noting that Mallappa involved special suspicious elements not present here.
Arunachellam v. Bamaswami Chetty	Where evidence displaces suspicion and the will appears in proper form with trustworthy attesting evidence, the Court will not substitute its own view of what the testator should have done.	The Court invoked this principle to reject attempts to remake the will for the testator once sufficient evidence supported its genuineness and form.
Gordhandas v. Bai Suraj	It is not necessary for a testator to be in perfect health or to give complicated instructions; it suffices that the testator, when the will is read or when he/she reads it, can understand that main instructions were carried out.	The Court applied this standard when assessing testamentary capacity, concluding the deceased need not have been in perfect health to make a valid will if she understood the main dispositions.
Spiers v. English (Sir Gorell Barnes)	The plea of undue influence should not be advanced unless reasonable grounds exist to support it.	The Court relied on this judicial instruction to reject the caveator's undue influence plea as being unsupported by reasonable grounds or direct evidence.
Bur Singh v. Uttam Singh	To invalidate a will for undue influence, it is necessary to show not merely opportunity but clear evidence that such influence was actually exercised.	The Court cited this authority to emphasize the need for clear evidence of influence and held the caveator failed to supply such evidence.

Court's Reasoning and Analysis

The Court undertook a fact-focused analysis of the evidence adduced at the probate hearing, applying established legal principles about proof of testamentary capacity, genuineness of signature, and undue influence.

On the question of signature and genuineness:

The Court accepted the testimony of the two attesting advocates who swore they saw the deceased sign the will. The witnesses were treated as reliable and independent; the fact that one shares chambers with petitioner 2 and the other belongs to the same community as the testatrix did not detract from their credibility.
The caveator's suggestion that the signature differed from admitted specimens was examined; the Court referred to the Evidence Act methods for proving disputed handwriting (ss. 45, 47 and comparison under s. 73) but noted that after personal comparison the Court found no "appreciable" difference between the will signature and admitted signatures. The Court declined to call expert handwriting evidence as unnecessary given the absence of appreciable difference.
The Court observed the will both begins with the name "Sonabai Ganpatrao" and is signed accordingly, explaining why the signature was not the deceased's full surname; this rebutted the contention that the signature was irregular on that ground.
Allegations that the will was "subsequently got up" were found to be mere assertion without evidentiary support.

On the question of testamentary capacity:

The Court summarized the law that while the law generally presumes sanity, when sanity is disputed the propounder must prove affirmatively that the testator was of sound mind at execution (citing Balkrishna v. Gopihabai and other authorities).
Applying the evidence, the Court concluded that the deceased knew what she was doing and was capable of making a will and understanding the dispositions. The Court expressly overruled the caveator's contention of insanity on the evidence before it.
The Court invoked Gordhandas v. Bai Suraj to stress that perfect health or perfect clarity is not required; the capacity to understand the main instructions suffices.

On the question of undue influence:

The Court identified that to establish undue influence the caveator needed to show that the petitioners were in a position to dominate the testatrix's mind and that such influence was exercised.
The only evidentiary allegation was that the first petitioner could get her to do as he liked by threats of "another branding" — an allegation the Court noted was never put to the first petitioner and remained unsupported by evidence.
Relying on authority (Spiers v. English and Bur Singh v. Uttam Singh), the Court emphasized that opportunity alone is insufficient; clear evidence of exercise of undue influence is required. The Court found the caveator's allegations to be insinuations and unproven.

Considering all documentary and oral evidence together, the Court found there was sufficient evidence to conclude the will was the testatrix's last will and testament and that she had the requisite capacity and freedom from undue influence at the time of execution.

Holding and Implications

Holding: Probate granted.

Implications:

Direct effect: The will propounded by the petitioners was established on the evidence and admitted to probate; the petitioners, as executors, were entitled to probate.
On broader legal consequences: The opinion applies and follows established authorities concerning burden of proof on testamentary capacity, the weight to be given to attesting witnesses, rules about suspicious circumstances when beneficiaries benefit, and the evidentiary standard for undue influence. The opinion distinguishes the present facts from cases with strong suspicious elements (e.g., Mallappa v. Tipava). The Court did not purport to lay down any new legal principle or to depart from settled precedent; it decided the matter on the facts and established law referenced in the opinion.

Note: This summary is strictly confined to the matters set out in the provided opinion and does not add facts or inferences not present in that text.

M.N/R.K

Show all summary ...

1. This is a petition for probate of the last will and testament of Sonabai, wife of Rao Saheb Ganpatrao Khanderao Vijayakar, who is the first petitioner. She died at Bombay on 26th November 1930, and her will is dated 18th July 1930. Petitioner 2 is the son-in-law of the deceased and petitioner being the husband of their predeceased daughter Sundrabai. The petitioners are the executors of the will. Sundrabai died in 1925 leaving a son Vasudeo, who is still a minor. The caveator, Vasantrao, is the only son of the deceased and petitioner 1. In the affidavit in support of his caveat he alleges that the will propounded by the petitioners is not the will of his deceased mother, that the signature on the will is not her signature and that she never understood nor approved of its contents, as she was demented and of a weak and inert mind since April 1928 down to the date of her death. He further alleges that the will was executed under the undue influence of the petitioners or either of them. The will is in the Marathi language except for the attesting clause which is in English. It has been attested by Shapurji Bdalji Ramji and Moreshwar Vinayak Pradhan, two advocates of this Court. According to the evidence led on behalf of the petitioners, petittioner 1 and his deceased wife were at Lonavla in or about June 1930, and petitioner 1 was at the time operated upon in the Lonavla hospital in his right hand. At that time the deceased conceived the idea of making her will, and accordingly she wrote out in her own hand certain heads of instructions for the preparation of her will. Thereafter she asked her husband petitioner 1 after he had recovered to make a fair copy of the same as she herself wrote in a bad hand, but her husband said that he would do so on their return to Bombay. I may here mention that petitioner 1 stated at first in his evidence that his wife actually made a draft in her own hand, and that on returning to Bombay he copied it out word for word; but subsequently he said that his first statement was a mistake, and that what he did in Bombay was to make out a draft will according to the heads of instructions written out by his wife in Lonavla by following the same as closely as possible. He submitted the fair draft of the will to one Narayan Jayakar, a managing clerk in the office of Messrs Little & Co., solicitors, and he said that Mr. Jayakar made one or two verbal alterations in the draft. The will was thereupon engrossed by petitioner 1 for execution, at the same time he wrote out his own will, and he gave both wills to his deceased wife for safe custody.

2. Thereafter he and his wife went by previous appointment to the office of Mr. Bamji in the afternoon on 18th July 1930, for execution of both the wills. Sonabai produced her own will from the fold of her “sari”. Mr. Bamji found that there was no attestation clause at the end, and he accordingly dictated one in English to petitioner 2. The deceased then signed the will as Sonabai Ganpatrao, and it was duly attested by Mr. Bamji and Mr. Pradhan. The will was not read out to her in Mr. Bamji's office, nor was she asked whether she had read it. It is however not usual to read out the contents of a will before attesting witnesses. Moreover it is written in the Marathi language, and it is clear from the evidence that the deceased could read and write well in Marathi, and there is no reason to believe that the will was not read by her at some time before it was brought to Mr. Bamji's office for execution. The will is written out on one side of several foolscap papers. Each paper is initialled in the left corner at the end by the two attesting witnesses, and the blank spaces at the back have been crossed out and initiated by the attesting witnesses. The date on the will in Marathi was filled in by petitioner 1 in Mr. Bamji's office at the time. There is also an endorsement at the foot of the will which has been signed by petitioner 1 and attested by the same witnesses. Immediately after the execution of the will, petitioner 1's will was also executed in Mr. Bamji's office and attested by the same witnesses. There is a similar endorsement at the foot of the will which is signed by the deceased Sonabai, and her signature has also been attested. All this happened about 3 p.m in the afternoon on 28th July 1930, in Mr. Bamji's office, and he has made an entry in respect of the attestation in his diary.

3. As I have said before, the will has been challenged by the caveator. He alleges that the will is not that of the deceased nor does it bear her signature, that since April 1928, she was not of the sound disposing mind necessary for the validity of the will, and that she had not sufficient capacity to deal with or appreciate the dispositions of her property by her will. Counsel for the caveator in his argument cited several cases, English and Indian, regarding the execution and proof of wills in cases where the will is challenged, but the important principles are now well settled and may be thus summarized:

(1) Generally speaking, the law presumes sanity, and where the will is not challenged, it is enough for the purpose of establishing the will that it was duly executed by the testator, that he was not a minor, and was otherwise capable of making a will under the law by which he was governed, (2) if the testator's sanity is disputed, the burden of proof lies upon the person propounding the will to prove affirmatively that the testator was of sound mind at the date of its execution, and that he knew, understood and approved of its contents: see Balkrishna v. Gopihabai (1). (3) If the insanity of the testator before the date of the will is once established, the burden of proof lies on the person propounding the will to show that it was made after the testator's recovery or during a lucid interval. If however it is not established, or habitual insanity does not exist, the burden of proving actual insanity at the date of the execution of the will shifts to the person impeaching the will: see Halsbury, Vol. 28, p. 533. (4) If the person propounding the will takes an appreciable benefit under it, that is an element of suspicion, of more or less weight according to the facts of each case, and the burden lies upon him to show that it is the will of the testator, and no probate can issue unless the Court is satisfied that the person propounding the will has led sufficient evidence which on a close and careful examination removes that suspicion. The same rule also applies to other circumstances which create suspicion in the mind of the Court: see Barry v. Butlin (2), Vellasawmy Servai v. Sivaraman Servai (3) and Mallappa v. Tipava (4). (5) If there is sufficient evidence to displace the suspicion, and the will has been made and is apparently in proper form, and the evidence of the attesting witness is trustworthy, it does not lie in the mouth of any party to say that the testator ought not to have made such a will, and to attempt to recreate another for him: see Arunachellam v. Bamaswami Chetty (5). (6) In order that a will may be found good it is not necessary that the testator should have been in perfect state of health and that his mind should have been so clear as to enable him to give complicated instructions for his will. It is sufficient if when the will was read out to him and explained to him, or also as I take it, when he reads it himself, he was capable of understanding that his instructions in the main had been carried out: see Gordhandas v. Bai Suraj (6).

4. It is the caveator's contention that the will propounded by the petitioners is not his mother's will and that it does not bear her signature. I will deal with the question of the signature first. The will has been attested by two advocate of this Court who have given evidence and sworn that they both saw the testatrix sign the will in their presence. They are both reliable and independent witnesses, and I am not prepared to accept the suggestion that they have perjured themselves. I accept their evidence, and the fact that one of them shares his chambers with the second petitioner and the other belongs to the same community as the testatrix does not in the least detract from its value.

5. Counsel for the caveator suggested that the handwriting of the signature is not that of the testatrix. According to the, Evidence Act the ordinary methods of proving a disputed handwriting are: (a) under S. 47 by calling a person or persons acquainted with the handwriting of the person by whom the disputed document is alleged to have been written or signed, (b) under S. 45 by calling an expert qualified to express an opinion on the disputed handwriting, or (c) by a comparison of some or more of the admitted or proved specimens of handwriting or signature of the person with the handwriting on or signature of the disputed document alleged to have been written or signed by him.

6. Such comparison must be made in accordance with the terms of S. 73 of the Act. Counsel for the caveator said that there was a marked difference between the signature on the will and some of the admitted signatures on documents which have been exhibited, and he wanted to call an ex pert in handwriting in support of his contention. I have myself carefully examined the signature on the will as weir as on the other documents, and I find no appreciable difference between them. I say ‘appreciable,’ because it is a matter of common knowledge that no two signatures of one and same person are exactly alike. I did not therefore think it necessary that the Court's time should be further taken up by calling expert evidence. It was also pointed out to me that the signature on the will is not the full signature of the deceased, her full signature being Sonabai Ganpatrao Vijayakar. The will, however begins by giving the name of the testatrix as Sonabai Ganpatrao, and the will is signed accordingly. It was also suggested that the will was subsequently got up. This is a suggestion which like many others made by the caveator rests merely in allegation and has not been proved. I hold that the signature on the will is genuine. (His Lordship overruled the contention regarding insanity on evidence and proceeded.) I have already expressed my opinion before that on the evidence led before me I am satisfied that the will propounded by the petitioners is the last will and testament of the deceased. A reference was made to the decision of the appeal Court in Mallappa v. Tipava but in that case there were many elements which created suspicion, one of which was that the will itself contained a false statement which the testator could not have made.

7. The will is also challenged by the caveator on the ground that the petitioners or either of them exercised undue influence on the deceased. In order to prove this allegation it is necessary for the caveator to prove that the petitioners were in a position to dominate her mind. The only allegation made in evidence was that the first petitioner could get her to do as he liked by threatening her with another branding. Such an allegation was never even put to the first petitioner. There is no evidence before me that the deceased was acting under compulsion, and she did not appear to the attesting witnesses to be acting in that manner. As was observed in by Sir Gorell Barnes in Spiers v. English (7) the plea of undue influence ought never to be put forward unless the party who pleads it has reasonable grounds upon which to support it. No grounds have really, been made out by the caveator. It was pointed out by their Lordships of the Privy Council in Bur Singh v. Uttam Singh (8) that it is necessary not merely to show that the person propounding the will had the opportunity to exercise undue influence, but clear evidence must be led to prove that such influence was exercised. The undue influence in the case before me is only an insinuation on the part of the caveator and has not been proved. Taking all the evidence, documentary and oral, into consideration, there is sufficient evidence for the Court to come to the conclusion that the testatrix knew what she was doing and was capable of making a will and understanding the dispositions of her property which she made thereunder. The will therefore in my opinion, is established, and ought to be admitted to probate.