SADACHI AMMAL Vs. RAJATHI AMMAL

JUDGEMENT

(1.) These appeals arise out of the same suit and raise the same question for decision. The appellants are some of the legatees under a will (marked Ex. I) said to have been executed by one Sanjeevi Sundaram Pillai on 2 September, 1930; and the point for decision is whether the said will was executed by the deceased in a sound disposing state of mind (issue 1). Ex. I was registered at the residence of the deceased at 10 A.M. on 3 September 1930 and the testator died after midnight of 4 September, i.e., early (2 A.M.) on 5 morning. The suit was instituted by the widow on 23 February 1931, for a declaration that Ex. 1 was invalid and void and did not affect her rights under the Hindu law and under a prior will (Ex. B), dated 7 August 1930. As there were disputes about possession, the plaint also prayed for reliefs by way of injunction and delivery of possession (if necessary). The defendants may be divided into four groups. Defendant 1 who receives the largest benefit under Ex. I, valued at Rs. 12,100 was the divided brother of the deceased. Defendant 2 who is given about Rs. 4000 worth of property was his sister and the wife of defendant 3. Defendants 4 to 9 are bandhus of the deceased, to whom property worth Rs. 3000 in all, is bequeathed in three shares. Defendants 3 and 10 are not beneficiaries but have been impleaded as having taken a prominent part in bringing about the will. Defendant 4 asserted an independent title to the estate; he was therefore exonerated from this suit and may accordingly be left out of account. Defendants 3 and 10 denied that they took any improper part in connexion with the will. They contended that they had been unnecessarily impleaded in the suit. As defendant 10 was one of the attesters to the will, he added that the will was freely and openly executed by the deceased when in a sound state of mind and with full knowledge of its contents. The legatee defendants (other than the fourth) supported the will.

(2.) The learned Subordinate Judge came to the conclusion, that though Ex. I had been signed by the deceased, the defendants had not proved that it was voluntarily executed by him in a sound disposing state of mind and that they had not cleared up the suspicious circumstances surrounding the execution of the second will so soon after the first will and altering its provisions in a. material manner. He accordingly passed a. decree substantially in terms of the prayer in the plaint. Defendant 1 has not chosen to appeal against the decree and has been impleaded as a respondent. Defendant 2 has filed A.S. No. 115 and defendants 5 to 9 have preferred A.S. No. 201. It is well established that whenever a will is prepared; and executed under circumstances which; raise the suspicion of the Court, it lies on the propounders not merely to prove the execution of the will, in the sense that it was signed by the testator, but also to adduce evidence which removes such suspicion and to satisfy the Court that the testator knewt and approved of the contents of the will see Tyrrell V/s. Painton (1894) L.R.P. 151 8 Pat 3822 and Sarat Kumari Devi V/s. Sakhichand (1929) 16 A.I.R. P.C. 45 and Vellaswami Servai V/s. Sivaraman Servai . In applying this rule, the question has sometimes been raised, what is the kind of suspicion contemplated by this rule? It is sufficient, for the purposes of this case, to refer to the facts of the cases last cited, as indicating some of the grounds of suspicion, because similar grounds also exist here. It seems to me that the existence of very material differences between two wills said to have been executed within a short interval is undoubtedly a circumstance calling for explanation. I do not deny that it is open to a testator to vary his dispositions as he pleases and if the Court is satisfied that the later document represents his voluntary, act, it is not for the Court to substitute its view of reasonableness in place of the testator's view. It may also be conceded that it may not always be possible for a third party to offer an adequate explanation for the reasons or motives which led as testator to change his mind. Making allowance for these considerations, it nevertheless seems to me that the difference between two alleged wills, especially if they have been executed at a short interval is a matter which the Court may legitimately take into account in determining whether the later will represents the conscious and voluntary act of the testator. And if the circumstances attending the execution of the second will suggest that the party substantially benefited by the change must have had some share in bringing it about, the burden lying on him is proportionately heavier and the (least that the Court is entitled to expect from him, if he desires to sustain the will, is that there should be a frank and full disclosure of all material circumstances. Considering the case from this point of view, I agree with the lower Court that those who propound the will, Ex. I, have not discharged the burden of proof which the law casts upon them.

(3.) In para. 12 of its judgment, the lower Court has set out the points of differences between the two wills, Exs. B and I. Under the earlier will, which purported to deal only with the immovable properties of the testator, the sister was only given a sum of Rs. 1100 outstanding on usufructuary mortgages. Under Ex. I, which purports to deal with the whole estate of the deceased (both moveable and immovable), she is given immovable property (buildings) of the value of Rs. 4000. In considering the significance of this change, the Court has to take note of the plaintiff's allegation that defendant 3, who was the sister's husband and was admittedly present at the execution of the will, took a prominent part in bringing it about. There is also the fact that though he was admittedly conducting this suit on behalf of his wife and was present in Court during the trial, he has not thought fit to go into the witness-box. The position as regards the brother is that under the first will he was given the testator's share in the old family house, on condition of his per. forming the obsequies of the deceased. This share was valued at about Rs. 2000 and the first will contained a further provision that if the brother (defendant 1) would not per form the obsequies, the widow should her self perform the ceremonies and take even this item of property. The relative insignificance of the gift and the introduction of this divesting clause even in respect of that small gift are certainly not indicative of extreme cordiality in the relations between brothers or of a desire on the part of the testator to bestow any large bounty on the younger brother, on the ground that he had children. Under the second will, the brother is given not merely the testator's share in the ancestral house but additional immovable properties valued at Rs. 10,100 subject to the liability to pay Rs. 300 to one Mooka Kothanar. The clause as to his performing the funeral ceremonies of the testator is repeated but the divestitive condition found in Ex. B has been omitted. That the dis. position under Ex. I involves a very substantial change in favour of defendant 1 has not been disputed. I shall in due course deal with that portion of his evidence which suggests a possible explanation for this change and states the part which he took in connexion with the transaction. As regards the widow, the position under the first will was that she took the moveable properties of the deceased as heir-at-law and she took an absolute interest in immovable properties of the value of about Rs. 21,000. She was also given an unrestricted power of adoption. In the later will, the power to adopt is omitted. She is given a house worth Rs. 4000, a sum of Rs. 1100 due under usufructuary mortgages and Rs. 2500 in cash. That these changes are distinctly prejudicial to the widow can admit of no doubt. It has not been suggested that the relations between the husband and the wife were not quite cordial. The attitude of the wife to an adoption proposed by the husband on the day before the execution of Ex. I has been suggested as a possible explanation for the change. I shall deal with this suggestion in due course.