The plaintiff in this suit filed O.P 35 of 1966 for the grant of Letters of Administration with the will annexed to the property and credits of her deceased father Rayapadi Nallasubbiya under S. 232 of the Indian Succession Aot and under the relevant rules formed in the Original Side of this court. It was sought to be proved in the common form but as persons interested me on record and attacked the validity of it will, it became necessary for the plaintiff to prove the will in solemn from. The defendant having entered a caveat and opposed the grant, the Original petition was converted into a testamentary original suit T.O.S 7 of 1966 and this is the suit which is now being adjudicated upon.

The plaintiff's case is that Ex. P-2 is the last will and testament of father, her Rayapadi Nallasukbaiya and the said will was executed by him duly at Madras on 16th of February 1955 in the presence of witnesses and the same has also been registered in the office of the Sub-Registrar of Sowcarpet as document No. 3 of 1965 in book HI The deceased left, besides the plaintiff, another daughter Chengamnaal who is the defendant in this action. The plaintiff states that the will having been executed in accordance with the prescribed mandates of the statute, she is entitled to the grant as pra yed for. The defendant, however, filed a written statement stating that the grant ought not to be made in favour of the plaintiff on the ground that no will as alleged by the plaintiff was executed by the deceased, and even if it was so executed by the deceased, it was under the influence of the plaintiff and the will was not executed whilst the deceased was in a free and disposing state of mind. Her main grievance is that as no provision has been made to her and as there is no reason for such differentiation, there is a presumption that the will has been brought about by the undue influence brought to bear upon the deceased by the plaintiff, her husband and others. Hesitantly the defendant pleaded that on the date of death of the deceased his absolute title to the property was in jeopardy as by then the High Court in A. S. 136 of 1957, held that the properties which are the subject matter of the will were the properties of the wife of the deceased. I used the word hesitaintly because the judgement of this court in A.S 136 of 1957 was reversed in L.P.A 13 of 1961, the judgement in which was pronounced by this court on 7-3-1963. Ex. P. 1 is the judgement in the said Letters Patent appeal. Thus, the relevant dates for purposes of chronology are (1) 16-2-1955 the date of will (2) 26-9-1956 the date of judgement of the first court in which the defendant claimed that the properties were that of her mother's (3) 28-10-1960, the date of the appellate decree in A, S. 136 of 1957, High Court Madras (4) 19-1-1962, the date of death of the deceased and (5) 7-3-1963, the date of judgement in L.P.A 13 of 1961. I may at one dispose of the last contention of the learned counsel for the defendant that on the date of death of the deceased he cannot be deemed to have necessarily title to the suit properties which enabled him to deal with the properties in a testament. This is an argument without any substance, because on 7-3-1963 the title of the deceased to the properties was upheld by this court and on such upholding it dates back to the date of the will, namely, 16-2-1955. It it alto tobo noted that on 16-2.1955, the deceased had the necessary power to subject his properties under a testamentary disposition and that capacity to dispose of the properties by a will having been ultimately upheld by this court, it cannot be contended by the defendant that the will should fail because of an intermediary decision of this court in A.S 136 of 1957 where in his title was not approved.

Rightly, therefore this court framed the only issue arising on the pleadings, which runs as follows—

“Is the will purported to have been executed by Royapadi Subbayya executed by him while he was in a sound and disposing state of mind?”

On the frame of the issue, the onus is on the defendant. But as initially the burden is on the plaintiff who has come up to prove the will in solemn form, the plaintiff opened the case and examined the witnesses on her side. As alreaey stated by me, the will was executed on 16-2-1955 and registered on 17-2-1955. The testator lived for seven long years thereafter and died on 19-1-1962. P.W.1 one of the attesting witnesses, who impressed me very much, would state that he knew the family of the testator for a considerable length of time and that he attested the will. The plaintiff originally sought to prove the will in a common form and in the said proceedings, P.W.1 filed an affidavit to the effect that he was present along with the other witness, Tulasidas, on 16-2-1955, at the house of of the deceased at No. 30, Kutti Maistry Street and that he and the other attesting witness did see the deceased set his right thumb impression at the foot of the testamentary paper Ex. P. 2. This was sufficiently explained by him in the witness box. He admitted candidly that he was not present when the will was signed by the testator by affixing his right thumb impression, but he would state that as soon as he was called to attest the instrument, he expressed a desire that he would read the will and read it loudly to the testator himself so that he could find out from him whether the testator was acknowledging it as his own. His evidenee is that on the testator having no objection for this witness reading out the will, he read out the same to him and the testator is said to have told him that he agreed ro the contents. This is a case in which the attesting witness swears that the testator acknowledged the will at his own, and the normal Inference is that the right thumb impression affixed on the said will has bean so affied by the testator out of his own free will and volition and that was the thing which he unreservedly expressed to the witness P.W.1 when he read over the testa mentary instrument to him. This is, there fore, a case In which the testator acknowledge the correctness of the will and therefore th thumb impression affixed thereto and this i definitely permissible in law. The object o attestation is for the testator to know that he has ocular evidence of the instrument having been subscribed by the witnesses, In so far and the attesting witnesses are concerned, the only statutory requisite is that they should have the necessary animus attestandi or intention to attest the document. In the instant case the witnesses attested the testament so that they could bear witness to the fact that the will was acknowledged to be the will of the deceased. Such acknowledgment by the testator to P.W.1 that he has made the will and therefore signed the same is equivalent to actually executing the will in the presence of the witnesses. In fact, the proposition that if one of the attestors speak to the signature of the testator, then it is enough and no further probe is necessary to satisfy whether the signature as acknowledged has been affixed. As pointed out by a Full Bench of this court in Ganesamdas v. Gulab Bi Bai(1), a personal acknowledgment of execution need not necessarily be restricted to an express statement to that effect, but may include words or conduct, or both, on the part of the testator which may be construed unequivocally as such an acknowledment. In this ease, by the conduct of the testator it is proved that he has acknowledged the will and tnerefore the necessary inference has to follow that the testator has duly executed the will by affixing his right thumb impression. P.W.3 would state that inspite of her efforts she is unable to get the second attesting witness But there is evidence of P.W.1, which I acceed that he attested the will of that. The second witness Tulasidas was also present and he attested the same in the presence of the testator. I am therefore satisfied it the will has been duly signed by the deceased.

One other aspect in this case is that this is a registered will. P.Ws.2 and 4 prove such registration. They were the identifying witnesses in the office of the Sub Registrar. They also speak to the fact that the testator affixed his thumb impression before the Sub Registrar and they identified the testator as such witnesses. P.W.2 made certain interlineations at the instance of the Sub Registrar. But this is obviously with the consent of the testator. The interlineatioa referred to the writting in Tamil at or near the right thumb impression of the deceased, in Ex. P. 2 to the effect that the thumb impression was the right thumb impression of the testator. There were certain other formal corrections and nothing can be said tobe incriminatory in so far as these corrections are concerned. One thing emerges from the evidence of P.W.2 and 4 that there was an unequivocal acknowledement of the will by the deceased before the Sub-Registrar and in their presence. P.W.4 Dr. Habibullah Beig, who is a sitting member of the Madras Legislative Assembly and a Councillor of the Corporation of Madras states that the testator was his patient and that be was in a sound health and mind at the time when he caused the registration of the will. P.W.4 would also say that a day or two prior to the registration, the testator wanted to settle the properties on his daughter and when he was called on that day to go to the Sub-Registrar's office he readily consented because he was very well acquainted with the testator and his family. P.W.2 was a clerk in the office in which the deceased was working. He also corroporates that the testat or acknowledged the will in the Sub-Registrar's Office and that he was the person who made the interlineations at the instance of the Sub-Registrar. Apparenly what the witness means is that the Sub-Registrar wanted him to write that it was the right thumb impression of the deceased. The testator was present at that time. It is impossible to conceive that P.W.2 did not formally consult the testator who was present to write as against the right thumb impression, that it was so of the testator. The normal presumption would be that such a consultation was made and indeed P.W.2 made the interleneations and the writing with the consent of the testator.

The will having been duly registered in the office of the Sub Registrar another presumption in favour of validity arises in law. It cannot be displayed that the identifying witnesses, P.Ws.2 and 4 were present in the office of the Sub Registrar with the animus to attest. Even the Sub Registrar is reported to have queried the testator whether the instrument was his and executed by him. This is referred to by P.W.2 and 4. Therefore, the ratio in the Full Bench decision of this court in Venkata Sastri v. Rahina Bee applies. The opinion of the Full Bench was that the signature of the attesting officer would amount to valid attesting signature to the document if the conditions necessary for a valid attestation have been satisfied and the persons affixing the signatures as the animus to attest. Even on this principle I am of the view that the will in this ease has been duly executed and duly attested and has been proved in the solemn form by the plaintiff.

The case of the defendant is that as, her interests have been totally disregarded, a presumption against the validity of the will arises and that it should be deemed to have been the result of undue influence exercised by the plaintiff, P.W.3 who was always living with the deceased. The onus probandi regarding the proof of wills cannot be better stated except to adopt the passage of Baron Parke in Barry v. Butlin(2) which has become a locus classicus running as under:—

“These rules are two: the first, onus probandi lies in every case upon the party pro pounding a will, and he must satisfy the con science of the court the instrument so propounded is the last will of a free and capable teststor. The second is, that if a party writes or prepares a will under which he takes a benefit or that it is a circumstance that ought generally to excite the suspicion of the court and calls upon it tobe vigilant and and jealous 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 so far as the first rule is concerned, the plaintiff satisfied this Court that the will as propounded is the last will of a free and a capable testator. As regards the second, though the will is propounded by the person who takes the benefit under it, yet the defendant has not discharged her burden in establishing that the circumstances under which the will was executed appear to be suspicious and that it was secured by the imposition of undue influence of P.W.3 The defendant did not go into the box, nor has she examined any one to prove her case. The issue as framed casts the burden of proving the same on the defendant. No attempt has been made. On the other hand, the evidence of P.W.4 who is a doctor is that the testator was sound in health and mind on the date when he registered the will, Excepting for the bare pleading in this case, the defendant has not sought to prove that there is any element of suspicion in the matter of execution and contents of the will in question. I accept the evidence of P.W.1, 2 and 4 and find that the will has been duly executed when the testator was in sound health and in a disposing state of mind and on the only issue framed in the suit, in favour of the plaintiff and against the defendant

The suit is therefore decreed and Letters of Administration shall issue with the will Ex. P-2 annexed thereto as the legatee under the will of the deceased to have effect through out the State of Madras on her furnishing personal security as is usual. As the parties are close relations, there will be no order as to costs.

v.c.s