THOMPSON Vs. J A GORDON

JUDGEMENT

(1.) This is an appeal against the judgment in O. S. 59 of 1947 on the file of the District Judge, Civil Station, directing that the probate of the will Ex. A, shall be granted to the plaintiff as prayed for, with costs, advocate's fee being fixed at Rs. 50. The respondent has filed cross-objections claiming Rs. 410 as advocate's fee.

(2.) The proceedings were instituted by filing an application under Sections 222 and 276, Succession Act for the grant of a probate in respect of the will Ex. a, executed by deceased Mrs. A.N. Gordon, leaving all her properties to the respondent-plaintiff J.A. Gordon, her son. and appointing him as the sole executor. The appellant-defendant who entered caveat as per law is the only daughter of Mrs. A.E. Gordon. Ac-cording to her, Mrs. A.E. Gordon was 70 years of age at the time of her death on 30-6-1947, and the will said to have come into existence on 22-3-1947 must have been obtained, if genuine, by undue influence of the plaintiff. Mrs. A.E. Gordon was old, infirm and did not have a sound mind, memory or understanding. The defendant does not admit that the will was executed by the deceased. The plaintiff in reply admitted that Mrs. A.E. Gordon was 70 years old, but denied that she was infirm, or of un-sound mind, memory or understanding. As regards the execution of the will, it has to be stated that though the plaintiff has not examined himself, he has examined 6 p. ws. P. W. 5, Mr. P.S. D'Souza, his advocate, says that he prepared the will Ex. A, under the instrustions of Mrs. A.E. Gordon, and that it was also executed by her in his and the attestors' presence by affixing her signatures Exs. A2 and A3, P. W. 1, Adiappa, Assistant Superintendent, Bangalore Power and Lighting, under whom the plaintiff has been employed and P. W. 2 D'Gosta, who is an employee under the plaintiff as well as p. w. 3, a pleader, junior of P. W. 5 have a worn that Mrs. A.E. Gordon affixed her signatures A2 and A3 to Ex. A, and that they have also affixed their signatures as attestors. There could hardly be any doubt about Mrs. Gordon having affixed her signatures to the will Ex. A.

(3.) The more important point for consideration is whether she was in a disposing state of mind when the will was executed and whether it was or was not executed under the undue influence of the plaintiff. As regards her mental state, it is admitted by the plaintiff that she was 70 years old. It is in evidence that one of her sons had been murdered and that her husband had died a short time before the execution of the will in question. It is mainly in respect of her state of mind that a number of D. Ws., including the defendant have been examined. D. W. 1 who was a tenant under Mr. and Mrs. A.E. Gordon, has stated that Mrs. Gordon was not an intelligent woman; during their conversation, he found that she could not understand him and that her mind used to wander and waver about with great fear. D. W. 2, M.V. Castello, says that Mr. Gordon predeceased Mrs. Gordon by about 10 months; her mind was wandering always as if she was dreaming; she could not understand what one said to her, and she was not talking coherently. He found her absolutely a wreck. She had only very elementary education. Her language was childish. She was sad and depressed. D. W. 3 is Mrs. M. Grant, the wife of D W. 1. She states that the health of Mrs. Gordon was very feeble. She was a sort of nervous person, her conversation was very simple and child-like; she was not intelligent. She was wavering in her conversation and was distract-ed. D. W. 4 is Mrs. C.M. Harison, who says that she knew Mr. and Mrs. Gordon from her childhood. According to her, Mrs. Gordon was not interested in anything; while conversing she used to drift away from subject of conversation and she was very weak physically. She says that she has never seen Mrs. Gordon read or write. D. W. 5 is a medical practitioner. He says he knew Mr. and Mrs. Gotdon for 6 or 7 years, as be was their family doctor. According to him Mrs. Gordon was feeble-minded. She was not in a position to understand the question put to her without the assistance of others. Extreme anguish, sorrow and physical weakness lead to mental feebleness. As she was diabetic and aged she could not have recovered from mental feebleness. There is no reason to disbelieve the evidence of these witnesses.