Judgement Appeal from a decree of the High Court (February 23, 1906) reversing a decree of Boddam J. (February 8, 1905) in testamentary suit No. 7 of 1904. In the said suit the plaintiff respondent propounded two documents dated October 11 and 18, 1903, as the last will and codicil of Thiruvengada Mudaliar, who died without issue at Madras on February 10, 1904. The defendant opposed the issue of probate, which was refused by the First Court and granted in appeal The question at issue was whether the testator when he executed the said documents or either of them was of a sound disposing mind. Boddam J. referred to the case of Hardwood v. Baker (( 1840) 3 Moo. P. C. 282.) to determine what were the tests of " a sound dis posing mind." He disbelieved the evidence of the respondent, of Ramakrishna, and of Strinivasa Chariar, the principal witnesses to the will, and;, relying on the medical evidence, came to the conclusion that the testator was not at the time of the execution of the said will and codicil of sound disposing mind. The High Court drew from the medical evidence as a whole the conclusion that the disability of the testator was mainly physical, not mental, and they held that his testamentary capacity on October 11 and 18 was established. They pointed out that the testamentary dispositions were simple and could be communicated in a very few words, and that there was no reason to regard the pleader as an untruthful witness when he stated that the will was prepared by him from instructions given to him directly by the testator himself. They added that there was not the slightest ground for regarding the sub-registrar as other than a perfectly un-biased witness, whose duty it was before registering the documents to satisfy himself as to the mental competency of the executant. The material passages in their judgment were as follows "We pass now to the evidence as to the circumstances under which the will and the codicil were executed. Much stress was laid by the defendants vakil on the medical evidence. But so far as it goes, it is in favour of the plaintiff. The material passages in their judgment were as follows "We pass now to the evidence as to the circumstances under which the will and the codicil were executed. Much stress was laid by the defendants vakil on the medical evidence. But so far as it goes, it is in favour of the plaintiff. Colonel Browning, I. M. S., who is an officer of great experience and standing, and who visited the testator professionally on October 16 and on every alternate day after that up to November 1, distinctly formed the opinion that the testator was competent to make a simple will, and it was during this interval (namely, on the 18th) that the codicil was executed. Dr. Vijiayaraghavaloo, the qualified native medical practitioner who attended the deceased throughout the illness from the beginning of October, was substantially of the same opinion. He attested both the will and the codicil at the time of execution, and further gave a statement, Exhibit F, to the registrar on October 26, when the codicil was registered, as to the mental condition of the testator on that day. The learned judge who tried the case considered that the medical evidence did not by itself establish affirmatively that the testator was competent to execute the will and codicil, and as he distrusted the evidence of the plaintiff and his witnesses, he considered that the plaintiff had failed to discharge the onus that lay on him of proving that the testator was of a sound and disposing mind when he executed the will and the codicil. No doubt the medical witnesses say that the testator was suffering from partial paralysis, including that of the tongue, and consequently was able only to express himself briefly, for the most part talking in monosyllables, and, as one of them said, faintly and slowly, but their evidence is quite distinct that he was able to answer questions put to him, and to answer them rationally and correctly. " The conclusion that we draw from the medical evidence as a whole is that the disability of the testator was mainly physical, not mental. " The conclusion that we draw from the medical evidence as a whole is that the disability of the testator was mainly physical, not mental. We have already stated that the dispositions of the will were such that they could have been communicated by very few and simple words, and we are of opinion that the persons who made the draft could have had no difficulty in following the instructions of the testator and embodying them as they did in the will and codicil, and that the testator was in a condition to fully understand the documents when read over to him, and to signify his approval or disapproval of them. Though, no doubt, both the plaintiff and the vakil in their evidence seem to give an exaggerated account of the capacity of the testator to express himself by words, and though the evidence of the plaintiff, as an interested party, must be accepted with caution, yet we see no reason to treat the vakil as an untruthful witness when he states that the will was prepared by him from instructions given to him directly by the testator himself. That the vakil had previously been doing legal work for the testator is beyond question. That he enjoyed his confidence is clear from the fact that he was employed to represent his interest in the friendly arbitration which affected the partition. He was therefore the natural person to be called in to make the will, and he would be unlikely to be guilty of a fraud in connection with it. The fact that another person was employed to prepare the draft of the codicil goes far to negative the idea of any conspiracy between the vakil and the plaintiff. Moreover the case does not rest altogether on this testimony, for both the will and the codicil were duly registered on October 14 and 26 respectively. We do not see the slightest ground for regarding the sub-registrar as ether than a perfectly un-biased witness, and it was his duty before registering the document to satisfy himself as to the mental competency of the executant both at the time of execution and at the time of registration. We do not see the slightest ground for regarding the sub-registrar as ether than a perfectly un-biased witness, and it was his duty before registering the document to satisfy himself as to the mental competency of the executant both at the time of execution and at the time of registration. " As to the man who was in temporary charge of the registration office for a few days in the interval between October 14 and 26, and who made a remark in one of his registers that on October 20 he went to register the will but found the testator unconscious, we do not attach any importance to that statement. Being dead at the time of the trial, he was not examined as a witness in the case. It is nowhere shewn that he actually saw the testator on the 20th, and as both the medical men visited the testator on that day and did not find him unconscious, it is clear that the statement referred to does not affect the case. " Intrinsic confirmation of the Sub-registrars evidence is afforded by several signatures made by the testator in the course of the registration proceedings, and these signatures we have no hesitation in saying were made by the same hand that signed the will and the codicil. “ It remains to add that at the end of November the testator registered a power of attorney in favour of the plaintiff empowering him to manage the property, and to alienate part of it to enable the testators debts to be discharged, and in pursuance of this the plaintiff did actually sell certain villages for the sum of Rs.18,000 to Ramakrishna, the cousin of the testator, already mentioned. It is admitted that the defendant used to visit the testator, who was his own brother, from the time he fell ill in October, 1903, until his death on February 10, 1904, the last visit being paid on February 9. It is in evidence that the defendant tried to remove the testator from Madras to the defendants own residence in the country. It is also in evidence that the defendants son used to attend on the testator. It is in evidence that the defendant tried to remove the testator from Madras to the defendants own residence in the country. It is also in evidence that the defendants son used to attend on the testator. In these circumstances and looking to the fact that the documents were registered, it is difficult to believe that the defendant was not aware of the existence of the documents, or that, if any deception were practised on the testator in connection with them, the defendant would not have brought it to the notice of the testator and got the documents cancelled. " In conclusion, we may notice that the documents, which we admitted in evidence at the hearing of the appeal, shew that in November, 1903, the defendants vakil called upon the testator by a registered notice to intimate his disclaimer of interest in certain arrears of rent for which the defendant was suing, and used a reply sent the day before the testators death as evidence of such disclaimer. This implies that the defendant knew that the testator was then capable of attending to business, and was not unconscious, as the defendant in his evidence pretended. " In these circumstances we feel that we are unable to arrive at the same conclusion as the learned judge with regard to the competency of the testator. We find that he was fully aware of the extent of his property, of the objects of his disposition and the nature of the dispositions. " We accordingly, in reversal of the decree of the learned judge, direct that the will and the codicil be admitted to probate, and that the defendant do bear the costs of the plaintiff throughout." Sir R. Finlay, K.C., and De Gruyther, K.C., for the appellant, contended that the evidence was not sufficient to establish the testators testamentary capacity on the dates in question. The onus was on the respondents and they had not discharged it. Reference was made to Barry v. Butlin (( 1838) 2 Moo. P. C. 480.) and the Registration Act III. of 1877, s. 63. Cohen, K.C., and Kenworthy Brown, for the respondent, contended that the evidence shewed that the testator was possessed at the dates of execution of a sound and disposing mind. Reference was made to Sajid Ali v. Ibad Ali (( 1895) L. R. 22 Ind. Ap. 171.) and the Registration Act, ss. of 1877, s. 63. Cohen, K.C., and Kenworthy Brown, for the respondent, contended that the evidence shewed that the testator was possessed at the dates of execution of a sound and disposing mind. Reference was made to Sajid Ali v. Ibad Ali (( 1895) L. R. 22 Ind. Ap. 171.) and the Registration Act, ss. 63 and 71. The High Court was right in finding on the evidence that though the testator was physically infirm he had sufficient mental vigour to understand what he was doing. Sir R. Finlay, K. C. in reply. The judgment of their Lordships was delivered by LORD COLLINS. This is an appeal from an appellate decree of the High Court of Madras reversing a decree of Boddam J., sitting on the original side of the High Court, who dismissed an application by the plaintiff (the present respondent) for probate of a will purporting to have been executed by one Thiruvengada Mudaliar on October 11, 1903, and a codicil thereto of October 18, 1903. The only issues were 1. 1. Was the testator, when he executed the will of October 11, 1903, of sound disposing mind ? 2. 2. Was the testator, when he executed the codicil of October 18, 1903, of sound disposing mind ? The onus was admittedly on the plaintiff, who propounded the will and codicil, to make good the affirmative in each case. The learned judge, who heard and saw the witnesses, held that he had entirely failed to do so. The Court of Appeal, who suffered under the disadvantage of neither seeing nor hearing the witnesses, nevertheless held that the onus on the plaintiff had been discharged, and admitted the will and codicil to probate. It is not disputed that the learned judge correctly laid down for his own guidance the essentials of "a sound and disposing mind." For reasons which he gives, he was unable to place any reliance on the persons called who were present on October 11 at the signing of the will, except the native doctor, who was one of the attesting witnesses. This gentlemans evidence, a great part of which is set out in the judgment, entirely justifies, in their Lordships opinion, the view taken by the learned judge, that it left the onus on the plaintiff quite undischarged, with the necessary consequence that, in the absence of other reliable evidence, the learned judge had no alternative but to dismiss the application. Certainly no other medical evidence was forth coming sufficient to turn the scale. Dr. Browning, the only other medical witness, had declined to see the testator with a view to witnessing his will, and says in evidence, " If what they say is true, that he had an attack of apoplexy on the 3rd, I should think it doubtful if he could have dictated a will like that [i.e. of October 11]. I am not prepared to say he could." As to the attack of apoplexy, there can be no possible doubt, for it was not disputed at the trial. As the result, therefore, of the medical evidence the onus is very far from shifted. The chief point made by the Court of Appeal against the decision of the trial judge is that he confounded physical with mental incapacity. But, in their Lordships opinion, there is no sufficient foundation for this imputation. It really arises from the fact that the learned judge dwelt upon the proved physical infirmities of the testator in limb and speech as entirely discrediting the account given by the plaintiff and the witness Strinivasa Chariar of what took place on October 11 and 18, a conclusion which, in their Lordships opinion, was entirely just. No doubt it is always difficult for judges who have not seen and heard the witnesses to refuse to adopt the conclusions of fact of those who have (see the observations of Lindley M.R. in Coghlan v. Cumberland ([ 1898] 1 Ch. 704.)); but that difficulty is greatly aggravated where the judge who heard them has formed the opinion, not only that their inferences are unsound on the balance of pro bability against their story, but that they are not witnesses of truth, and that was the inference which Boddam J. drew with regard to some of the material witnesses for the plaintiff in this case. The Court of Appeal seem to have attached some weight to a suggestion that the testator was on bad terms with his brother, his nearest male relative and heir. But this suggestion is displaced by the letters which were produced in wing the affectionate terms on which they corresponded. The Court of Appeal also seem to attach too much weight to the fact that the defendants vakil advised that formal notice should be sent to the testator shortly before his death, demanding a disclaimer of interest in certain arrears of rent in respect of property which had fallen to the defendants share on a family division. Even if the defendant appreciated its significance, it was no more than an attempt under the advice of his lawyer to cure a technical blot as a measure of precaution in a legal process. Their Lordships are of opinion that Boddam J. was right in holding that the plaintiff had failed to discharge the burden of proof. They will therefore humbly advise His Majesty that the appeal should be allowed, the appellate decree of the High Court set aside with costs, and the decree of Boddam J. restored. The respondent will pay the costs of the appeal.