JUDGMENT : ( 1. ) THE dispute in this appeal and the connected cross objection relates to the estate of Manjibhai Khodabhai, who died on 13th February 1966 at Raipur. Manjibhai belonged to Gujarati Mochi community and was domiciled at Raipur. Manjibhai was a self made man. He started shoe business in wholesale and retail and the properties left by him at Raipur were his self acquired properties from business. The suit giving rise to this appeal was instituted by his widow Amritbai (plaintiff No. 1) and mother Manikbai (plaintiff No. 2) against the defendant Mulchand for a declaration that be was not entitled to any interest in the properties left by Manjibhai. Possession, of the properties was also claimed in the suit. Mulchand claimed that he was adopted by Manjibhai on 1st May 1962. He also claimed under a will executed by manjibhai on 7th February 1966. Further, he claimed that the running business with its assets and liabilities was gifted in his favour by Manjibhai during his life time. ( 2. ) THE learned District Judge, Raipur, who tried the suit, came to the conclusion that the adoption was proved and was valid. On the question of will, the District Judge held that though the will was signed by Manjibhai, he did not execute it under his free will with a disposing and understanding mind and, hence, it was invalid. As regards gift, it was held that it was not proved. During the pendency of the suit, Manikbai (plaintiff No. 2) died and Kanjibhai, brother of Manjibhai, was substituted in her place. On the findings reached by him, the District Judge held that Manjibhais widow and mother succeeded along with the adopted son to the estate of Manjibhai. As a result, the suit was decreed for joint possession. Aggrieved from the decree of the trial Court, the defendant filed this appeal challenging the findings on the questions of will and gift. The plaintiffs have filed a cross-objection in which they have challenged the factum and validity of adoption. Thus the entire controversy is again open in this appeal. ( 3. ) THE first question that arises in the case is about the fact of adoption. The plaintiffs have filed a cross-objection in which they have challenged the factum and validity of adoption. Thus the entire controversy is again open in this appeal. ( 3. ) THE first question that arises in the case is about the fact of adoption. The case of the defendant on the point of adoption is that the adoption took place at Nagpur in the house of his natural uncle Bhanjibhai (D. W. 16) on 1st May 1962, and that he was given in adoption by his natural mother Manibai (D. W. 4) as his father was then dead. It is further alleged that the defendant was taken in adoption by Manjibhai with the consent of his wife, the first plaintiff, and both were present at the time of adoption ceremony. Bhanjibhai and Manjibhai belonged to the same community. There was friendship between them. It has been admitted by Amritbai (plaintiff No. 1) in her evidence that a few days before 1st May 1962 she with her husband Manjibhai had gone to nagpur and had stayed with Bhanjibhai. According to the plaintiff, this visit was to participate in Shrimant ceremony of the defendants elder brothers wife. Shrimant ceremony is a ceremony which is performed during the seventh month of first pregnancy. The plaintiff denied in her evidence that there was any adoption ceremony performed at that time. There is, however, ample evidence, both direct and circumstantial, in favour of adoption. Manibai, the natural mother of the defendant, has been examined as D. W. 4 on commission. She has deposed that the deceased Manjibhai and his wife, plaintiff No. 1 had asked her to give her youngest son, i. e. the defendant, in adoption and that she had consented to the same. She has further deposed that the adoption ceremony was performed by a priest and was attended by the members of the community. After the priest performed the Tilak, she bid farewell to her son by saying that till now he was being looked after by her and in future he would be looked after by Manjibhai. On this Manjibhai and his wife said that they would look after the defendant very well. Manibai in her statement has referred to the giving and taking ceremony as Bidai of her son, meaning thereby that from that date he ceased to be her son and became the son of Manjibhai. On this Manjibhai and his wife said that they would look after the defendant very well. Manibai in her statement has referred to the giving and taking ceremony as Bidai of her son, meaning thereby that from that date he ceased to be her son and became the son of Manjibhai. It is in that context that she has stated to have said at the ceremony that till then the boy was looked after by her and now he would be looked after by Manjibhai. Jayantilal (D. W. 9) is the priest. His evidence is to the effect that the ceremony of adoption was performed by him. At the time of performance of religious rites, the defendant with his natural mother Manibai was sitting on one side and Manjibhai and plaintiff No. 1 were sitting on the other side. After poojan and Tilak, Manibai said that she was giving the defendant in adoption and Manjibhai said that he was taking him in adoption. After, that the defendant moved and sat on the lap of plaintiff No. 1, who gave some presents to the defendant. Similar version of the ceremony is given by Bhanjibhai (D. W. 16), the natural uncle of the defendant. Kundanlal (D. W. 8) is a witness who attended the ceremony. He retired in 1964 as Appellate Assistant commissioner of Inccme-tax. His statement is that he was present at the time when the ceremony of giving and taking was performed. This witness deposes that when the priest asked the defendants natural mother whether she was giving her son in adoption, she said yes she was giving her son in adoption. Similarly, the priest asked Manjibhai and his wife and they also said that they were taking the defendant in adoption. Thereafter the defendant, who was sitting near her mother, moved and sat between Manjibhai and his wife. Mohanlal (D. W. 18) is another witness who was present on the occasion. The witness deposes that after the religious ceremony was performed,the defendants mother said that she was giving her son in adoption and Manjibhai and his wife, plaintiff No. 1, said that they were taking the defendant in adoption. The evidence of these witnesses has been relied upon by the learned District Judge. We also find the evidence to be reliable. The witness deposes that after the religious ceremony was performed,the defendants mother said that she was giving her son in adoption and Manjibhai and his wife, plaintiff No. 1, said that they were taking the defendant in adoption. The evidence of these witnesses has been relied upon by the learned District Judge. We also find the evidence to be reliable. Although the version of the actual giving and taking has been stated by the witnesses with slight variations as to details, there is no doubt about the substance. It is clear that before the ceremony it was decided that the defendants natural mother would give her son in adoption and Manjibhai would take him in adoption. After this was settled, a ceremony was arranged. In this ceremony, after certain religious rites were performed, the defendants natural mother said that she was giving the boy in adoption and similarly Manjibhai said that he was taking the boy in adoption. The defendant who was till then sitting beside his natural mother was asked to move and he shifted to the place where his adoptive parents were sitting. He may or may not have actually sat on the lap of his adoptive mother, but that is of no consequence. Some presents were then made to him by his adoptive mother. At the time when the ceremony was performed certain photographs were taken which are Exs. D- l to D-5 and D-l1. These photographs support the oral evidence of the adoption ceremony and the presence of plaintiff No. 1 at that time. ( 4. ) SECTION 11 (vi) of the Hindu Adoptions and Maintenance Act, 1956, provides that "the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. " In this respect the Act has only codified the Hindu Law which had always required the physical act of giving and receiving to be necessary for the validity of adoption. The law, however, does not prescribe any particular form or mode for the act of giving and taking. All that the law requires is that there should be some overt act to signify the delivery of the boy from one family to another. The law, however, does not prescribe any particular form or mode for the act of giving and taking. All that the law requires is that there should be some overt act to signify the delivery of the boy from one family to another. It is sufficient if the natural parent be asked to give his or her son in adoption and the boy be handed over by him or her to the adoptive parent: [lakshman Singh v. Rupkunwar ( AIR 1961 SC 1378 .), Debi Prasad v. Tribeni Devi ( AIR 1970 SC 1286 .); Malla, hindu Law, 14th edition p. 554, Maynes Hindu Law, 11th edition, p. 237. ] The evidence produced by the defendant clearly establishes that there was giving and taking as required by law. The evidence further establishes that plaintiff No. 1 was a willing party to the adoption and she was present throughout the ceremony. Under section 7 of the Act a male Hindu who has a wife living cannot adopt except with the consent of his wife. The consent of the wife to the adoption made by her husband need not be directly proved and it may be inferred from circumstances. In the instant case, plaintiff No. 1 throughout participated in the adoption ceremony when the defendant was taken in adoption by her husband Manjibhai. The evidence discloses that after the ceremony was over she gave presents to the defendant. In our opinion, it clearly follows that Manjibhai took the defendant in adoption with the consent of plaintiff No. 1. ( 5. ) AFTER the adoption ceremony, the defendant came to live with Manjibhai at Raipur. He was admitted in New Arts and Commerce College of durga Mahavidyalaya, Raipur, on 28th June 1962. Ex. D-9 is the application which was made for the defendants admission to the college authorities. In this application the defendants fathers name is shown as Manjibhai. The application bears an endorsement by Manjibhai stating that the defendant was his son and that he would be responsible for payment of fees and also for the defendants conduct. Ex. D-7 is an affidavit sworn by Manjibhai before a magistrate. It appears that this affidavit was produced before the college authorities for getting the defendant admitted. The application bears an endorsement by Manjibhai stating that the defendant was his son and that he would be responsible for payment of fees and also for the defendants conduct. Ex. D-7 is an affidavit sworn by Manjibhai before a magistrate. It appears that this affidavit was produced before the college authorities for getting the defendant admitted. In this affidavit it was clearly stated by Manjibhai that he adopted the defendant on 1st May 1962 at Nagpur and that necessary ceremony was performed according to the caste custom. It was further stated in the affidavit that as a result of the adoption the defendants fathers name became Manjibhai and that he became a permanent resident of raipur, Madhya Pradesh. The defendant studied in the college from 1962 to 1965. In the college records, as shown from Exh. D-8 and D-10, the defendants fathers name was entered as Manjibhai. Manjibhai was assessed to income-tax. After adoption he claimed the status of H U F and this was allowed as is clear from the assessment order Ex. D-15 passed on 31st January 1964 for the assessment year 1963-64. Another important circumstance in support of the adoption is that on 30th June 1966 Manjibhai convened a meeting of his community of which he was then the President. In that meeting he resigned from the office due to ill health and gave a donation of Rs. 10,000 to his community. There he also announced that he had taken the defendant in adoption on 1st May 1962 at Nagpur. In this meeting plaintiff No. 1 and the defendant were present. The proceedings of this meeting were recorded and signed by the panchas of the community who were present. A copy of the proceedings is ex. D-13c. It will be seen from the proceedings that plaintiff No. 1 who was present did not raise any objection and accepted the statement made by her husband Manjibhai that the defendant was their adopted son. The defendant was also got married by Manjibhai. In short, after adoption he lived as a son of Manjibhai till Manjibhais death. ( 6. ) IN our opinion, there is overwhelming trustworthy evidence that the defendant was adopted by Manjibhai on 1st May 1962 at Nagpur with the consent of plaintiff No. 1. ( 7. The defendant was also got married by Manjibhai. In short, after adoption he lived as a son of Manjibhai till Manjibhais death. ( 6. ) IN our opinion, there is overwhelming trustworthy evidence that the defendant was adopted by Manjibhai on 1st May 1962 at Nagpur with the consent of plaintiff No. 1. ( 7. ) THE validity of the defendants adoption is challenged essentially on the ground that he was over fifteen years in age at the time of his adoption and could not have been lawfully adopted as provided in section 10 (iv) of the adoptions and Maintenance Act. The fact that the defendant was over fifteen years in age at the time of his adoption is admitted by his natural mother Manibai (D. W. 4) in cross-examination. The defendants date of birth entered in the Arts and Commerce College, Raipur, where he studied after adoption, is 12th January 1945 (see Exhibits D-8 and D. 10 ). It is, therefore, proved beyond doubt that the defendant had completed the age of fifteen years before his adoption on 1st May 1962. ( 8. ) SECTION 10 (iv) of the Adoptions and Maintenance Act provides that no person shall be capable of being taken in adoption unless- "he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. " Section 4 (a) of the Act says that "save as otherwise expressly provided in this act,- "any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. " The expressions "custom" and "usage" are defined in section 3 (a) of the Act to signify: "any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family : provided that the rule is certain and not unreasonable or opposed to public policy; and provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family;" ( 9. ) IT will be seen that as the Act makes a specific provision in section 10 (iv) that a person is not capable of being taken in adoption if he has completed the age of fifteen years, any text, rule or interpretation of Hindu Law and any custom or usage as part of that Law on the question of age upto which a person is capable of being taken in adoption will, as enacted in section 4, cease to have effect "save as otherwise expressly provided". Section 10 (iv) does not make any provision to keep alive "any text, rule or interpretation of Hindu law" on the question of age at which a person can be adopted, but it does make an express provision keeping alive "a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. " Now, the expression "any text, rule or interpretation of Hindu Law" interpreted in a wide sense is capable of embracing any custom or usage forming part of that law. In a well known text of Manu laying down the four sources of Dharma or more correctly sources from which our knowledge of Dharma is derived, Sadachar, i. e. customs or usages of virtuous men, is one The authority of custom as a source of law is reasoned on the basis that a rule of conduct sanctioned by custom if not opposed to an express text, custom, although not encouraged or commended, was tolerate and recognised in the administration of justice on political considerations: [p. N. Sen, Hindu Jurisprudence, pp. 10, 16 to 19j. The Privy Council in the Collector of Madura v. Moottoo Ramlinga sathupathy (12 MIA 397. P. 436.) emphatically ruled that "under the Hindu system of law, clear proof of usage will outweigh the written text of the law". 10, 16 to 19j. The Privy Council in the Collector of Madura v. Moottoo Ramlinga sathupathy (12 MIA 397. P. 436.) emphatically ruled that "under the Hindu system of law, clear proof of usage will outweigh the written text of the law". We are, however, of opinion that in section 4 (a) of the Act the expression "any text, rule or interpretation of Hindu Law" must be understood in a limited sense as excluding "any custom or usage as part of that law", firstly because the latter expression is separately mentioned in the section and secondly because in sections 10 (iii)and 10 (iv) the Act enacts exceptions to keep alive "custom or usage" although no exception is made in favour of any "text, rule or interpretation of Hindu law," As earlier stated, the parties in the instant case belong to Gujratimochi community. According to the evidence of Amritbai (plaintiff No. 1) her family migrated from Kathiawar fifty years back. As a Hindu family carries with it its personal law to the place where it migrates, the parties would be governed by the Bombay School of Hindu Law, in spite of the fact that they became domiciled in Central India [see Virdhachalam Pillai v. Chaldean Bank (air1964 s c 1425,pp. 1434,1435.)]. According to the Bombay School of Law, there was no restriction as to age at which a person could be adopted. But for the enactment of the Adoptions and Maintenance Act the adoption of the defendant would have been valid. If the rule of the Bombay School of Law which permitted adoption of a person without any restriction as to age can be said to be based on custom or usage prevalent in Western India, that will still continue unaffected by the Act; but if the said rule is based on any text, rule or interpretation of Hindu Law, it must be taken to be overridden by the Act. So the question to be first enquired into is whether the rule of the Bombay School of Hindu Law which permits adoption of a person of any age is based on any text, rule or interpretation of Hindu Law or on custom or usage. ( 10. ) THE Smritis and commentaries on the general law do not contain any prohibition with regard to the age which may limit the capability of a person to be adopted". ( 10. ) THE Smritis and commentaries on the general law do not contain any prohibition with regard to the age which may limit the capability of a person to be adopted". There is, however, a text of the Kalika Purana which lays down that a boy after the age of five or who has had his tonsure performed cannot be adopted. This text of the Kalika Parana reads as follows: "o King that son, whose samskaras upto (including) the. cuda (tonsure) ceremony are performed with the gotta of his (natural) father, does not (i. e. cannot) attain the status of the adopted son of another. When the ceremonies of coda and upanayana are performed under his own gotra (by the adoptive father) the dattaka and the other kinds become (recognised as) sons (in the adoptive family); otherwise they are called the dasa (slave ). After the fifth year the adopted son and the rest cannot be (recognised as) sons. Having taken one who is five years old, one (the adopter) should first perform the putresti". (Kane, History of Dharmasastra, Vol. III, p. 680. ] the authority of this text is accepted by the Dattaka Mimamsa and the Nirnaysindhu, but the Dattak chandrika and the Vyavahara Mayukha hold that the text is of doubtful authenticity as it is not to be found in several manuscripts of the Kalika Purana : (see Kane History of Dharmasastra, Vol. HI, pp. 679, 680]. Nilkantha, the author of the Vyavahara Mayukha, after quoting the said text says as follows :- "it relates to asagotras only. Upto the ceremony of tonsure inclusive; here the particle, and, is inceptive, used for the sake of entirely including all such cases; for if it be meant as a limit conclusive, it will have the objection of being in opposition to the ceremonies of tonsure and investiture. But much reliance is not to be placed on this last passage, because it is not to be found in two or three copies of the Kalika Purana. " [setlur, Hindu Law Books on Inheritance, p. 80j in an earlier passage quoting the authority of his father, Shankara Bhatta, Nilkantha observes: "and my father has said that, a married man, who has even had a son born, may become an adopted son. This also is reasonable, for there is nothing against such a view. " [setlur, Hindu Law Books on Inheritance, p. 80j in an earlier passage quoting the authority of his father, Shankara Bhatta, Nilkantha observes: "and my father has said that, a married man, who has even had a son born, may become an adopted son. This also is reasonable, for there is nothing against such a view. " [setlur, Hindu Law Books on Inheritance, p. 80. ] when Nilkantha says that the text of the Kalika Purana refers to the adoption of an asagotras boy, that is not his real opinion. He only concedes that that passage may, if at all, refer to the adoption of an asagotras boy. His real opinion is that the text restricting the capability of being taken in adoption upto the age of five and before tonsure is not authentic and that even a married man who has had a son is capable of being adopted. So the Vyavahara Mayukha has been understood to hold that even a boy not of the same gotra may be taken in adoption at any age even after upnayana or after marriage and even when the person to be adopted has himself had a son : (Kane, History of Dharmasastra, Vol. HI, pp. 680, 681 ; Dharma v. Ramkrishna (ILR10bom. 80.), Kalgavda v. Somappa (33 Bom. 669. ). The Vyavahara Mayukha is a work of early 17th century and is recognised of very high authority in Western India. So far as Gujarat, the Island of Bombay and North Konkan are concerned, it is paramount and is to be preferred even when it differs from the Mitakshara: (see Maynes Hindu Law, 11 th edition, pp. 48, 49 ). ( 11. ) WE have earlier stated that there is no text in the smritis or commentaries on the general law containing any prohibition as to the age when a person ceases to be capable of being taken in adoption. The restriction as to age is found in the text of the Kalika Purana which is held by the Vyavahara Mayukha to be spurious. Thus the opinion expressed in the Vyavahara Mayukha, that there is no restriction as to age when a person can be adopted and that even a married man can be adopted is not based on any text, rule or interpretation of hindu Law. Thus the opinion expressed in the Vyavahara Mayukha, that there is no restriction as to age when a person can be adopted and that even a married man can be adopted is not based on any text, rule or interpretation of hindu Law. It has been judicially noticed that such a custom was prevalent in western India and a reasonable theory to adopt is that it is that custom which is reflected in the Vyavahara Mayukha. In Nathaji Krishnaji v. Hari Jagoji ( (1871) 7 Bombay High Court Reports 67.), where it was held that the adoption of a Shudra who is married at the time of his adoption is not invalid, it was observed that independently of the Hindu Law there was sufficient authority for holding that adoptions of married men in dakhan are recognised by the custom of the community. In Balwant Rao v. Baji Rao (AIR 192 LP C 59.) the Privy Council, referring to the commentaries including the Mayukha, said that "they do not enact, they explain and are evidence of the congeries of customs which form the law" : (p. 61 ). ( 12. ) IN our opinion, the rule of the Bombay School of Hindu Law which permits adoption of a person of any age and which is incorporated in the Vyavahara Mayukha is not based on any text, rule or interpretation of Hindu Law, but only reflects the custom or usage of the people belonging to Western India. It cannot, therefore, be said that the said rule has been abrogated by section 10 (iv) of the Adoptions and Maintenance Act. The view that we have taken is in line with the decision of the Bombay High Court in Housabai v. Jijabai (a I R 1972 Bom. 98. ). It cannot, therefore, be said that the said rule has been abrogated by section 10 (iv) of the Adoptions and Maintenance Act. The view that we have taken is in line with the decision of the Bombay High Court in Housabai v. Jijabai (a I R 1972 Bom. 98. ). Opinion to the same effect is expressed by Raghvachariar in his Hindu law, 6th edition, p. 1165, where the learned author in the context of section 10 (iv) observes as follows: "in the Bombay Presidency there had been a long and uniform practice of the adoptee being of any age, even older than the adopter, and the exception engrafted in this clause to the effect that if there is a custom or usage applicable to parties permitting persons who have completed the age of 15 years being taken in adoption such an adoption is not invalid is designed merely to recognise this practice in the Bombay State. " ( 13. ) THE defendant has also led oral evidence to show that adoption of a boy of any age is recognised as valid in his community. Babulal (D. W. 5) is an important witness on this point. He has stated that the community to which he belongs and which has its origin in Kathiawar is known as Mochi or Jan chhatri. The community is divided into various sub-castes. The witness has stated that there is no restriction as to age at which a person can be adopted in his community. He has given two instances where the boy adopted was over fifteen years in age. The first instance relates to an adoption which was made by one Popatbhai thirty-five years back. The boy adopted in that case was about seventeen or eighteen years. Another instance that he has quoted is of an adoption made five years before in which one Gordhan took a boy in adoption who was aged about twenty or twenty-one years. The evidence of Radhabhai (D. W. 1) is also to the same effect. He has stated that he was himself adopted at the age of eighteen years by his uncle Maoji. Govind Bhai (D. W. 3)also proves an adoption of a boy made by one Deojibhai when the boy was aged twenty years. The evidence of Radhabhai (D. W. 1) is also to the same effect. He has stated that he was himself adopted at the age of eighteen years by his uncle Maoji. Govind Bhai (D. W. 3)also proves an adoption of a boy made by one Deojibhai when the boy was aged twenty years. The evidence of these witnesses is consistent with the rule of the bombay School of Hindu Law that there is no restriction as to age when a person can be adopted. As earlier stated, the rule itself has its origin in custom and usage of the people of Western India and has been saved by section 10 (iv)of the Adoptions and Maintenance Act. ( 14. ) WE uphold the finding of the District Judge that the adoption of the defendant was valid although he had completed the age of fifteen years at the time of his adoption. ( 15. ) THE next question is whether the defendant has been successful in establishing that the will (Ex. D-12) was executed by Manjibhai after understanding it and with intention to dispose of his properties in accordance with the directions contained in it. The District Judge has held that the tenor of the will shows that it was prepared by the defendants well wishers, that Manjibhai at the time and date of the alleged execution of the will was not in a fit physical and mental state and had no sound disposing mind to understand the nature of dispositions purported to be made under the will on which his signatures were obtained The District Judge has further held that Nanjibhais power of speech and hearing had been substantially affected by cancer of the throat and his power of sight was not beyond dispute, and that a mere formality of reading the document without the least consideration whether he had understood its recitals and dispositions was performed and his signatures were obtained. On these findings the District Judge has held the will to be invalid. ( 16. On these findings the District Judge has held the will to be invalid. ( 16. ) THE principles bearing upon the question of proof of will were laid down by the Supreme Court in the case of H. Venkatachala Iyenger v. B. N. Thimmajamma (A I R 1959 SC 443.) and have been reiterated in subsequent cases: (Purnima Debi v. Khagendra Narayan (A I R 1962 SC 567, ), Shashi Kumar v. Subodh Kumar (A I R 1964 s c 529.), Ramchandra v. Champabai (AIR 1965 SC 354.), Thataiah v. Venkata Subbaiah ( AIR 1968 SC 1332 . ). These principles are that a will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Succession Act. The burden of proof is on the pro pounder who is to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, and that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. When the will is surrounded by suspicious circumstances, the burden of proof is heavier. If the alleged signature of the testator is shaky and doubtful; if the condition of the testators mind appears to be feeble; if the dispositions made appear to be unnatural; or if the pro pounder himself takes prominent part in the execution of the will which confers on him substantial benefit, it would be the duty of the pro pounder to remove the suspicion from the mind of the Court by cogent and satisfactory evidence. But even where a will is charged with suspicion, the rules enjoin only "a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth" : [harmes v. Hinkson15. (AIR 1946 P. C 156.) quoted with approval in Thimmajammas case (supra ). ] As observed by the Supreme Court, "in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect": Thimmajammas case (supra ). ( 17. He is never required to close his mind to the truth" : [harmes v. Hinkson15. (AIR 1946 P. C 156.) quoted with approval in Thimmajammas case (supra ). ] As observed by the Supreme Court, "in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect": Thimmajammas case (supra ). ( 17. ) THE appellate Court in dealing with any case where credibility of oral evidence has to be assessed gives due weight to the opinion expressed by the trial Judge who has the advantage of watching the demeanour of witnesses. This principle applies also to a case where a will is in issue and its proof depends on oral evidence: Harmes v. Hinkson (supra); Shama Charan Kundu v. Khettromoni Dasi (I L R 27 Cal. 521 (P C), p. 528. ). In the instant case, however, the District Judge who delivered the judgment under appeal had not that advantage because all the evidence excepting that of Onkarlal Sharma (P. W. 3) was recorded by his predecessor. The district Judge, therefore, was more or less in the same position as we are in the matter of appreciation of evidence. ( 18. ) BEARING in mind the principles stated above, we now approach the question of proof of the will, A look at the will shows that prima facie Manjibhai took all precautions to see that the authenticity of the will may be put beyond dispute. The will purports to be drafted by an advocate, V. D. Pendharkar (D. W. 11) who signed the same in that capacity. The wilt is attested by four witnesses. The first attesting witness is another advocate, Onkarlal Sharma (P. W. 3 ). He not only signed the will as an attesting witness but also made an endorsement in Hindi on it that the will was read over to Manjibhai and that Manjibhai after accepting the same signed in the presence of the witness and the witness signed in the presence of the testator. The second and third attesting witnesses are Jadhavji (D. W. 15), Secretary of the Gujarati Mochi samaj, Raipur, and Mohanlal (D. W. 18), President of the Samaj. These witnesses also made similar endorsements in Gujarati as made by Onkailal Sharma (P. W. 3 ). The fourth attesting witness is Dr. Banjari (D. W. 14), a friend and family physician of Manjibhai. These witnesses also made similar endorsements in Gujarati as made by Onkailal Sharma (P. W. 3 ). The fourth attesting witness is Dr. Banjari (D. W. 14), a friend and family physician of Manjibhai. He made an endorsement in English to the effect that the will was read over to Manjibhai who admitted the contents and executed and signed the will in the presence of the witness and the witness also signed in the presence of Manjibhai. The endorsement made by this witness is also to the effect that Manjibhai was in full senses and in perfect understanding at the time of execution of the will. The District Judge has himself remarked that the advocates Pandharkar and Sharma are senior advocates of Raipur. It will thus be seen that the will purports to be drafted and signed in that capacity by a senior advocate; it purports to be attested by another senior advocate, the President of the testators community, the Secretary of that community and the family physician of the testator with endorsements that the will was read over to the testator who had accepted the same and that the testator was in a fit mental condition. It is difficult to surmise that two senior advocates, the president and the secretary of the community of Manjibhai, who must be respectable persons, and the family physician of Manjibhai who was also a friend of long standing, all combined to help in the creation of a will without satisfying themselves that it was really a voluntary act of Manjibhai and the depositions were fully understood by him. However, some of these witnesses have given contradictory evidence and we shall refer to their evidence hereinafter as and when necessary. ( 19. ) IT may first be seen whether the dispositions made in the will were in any way unnatural or of such a nature as to arouse a suspicion. We have earlier stated that Manjibhai was a self made man. Out of the earnings from his business he had acquired two houses at Raipur. One of these houses is in Sadar Ward and the other in Baijnath Para. It appears that these houses are sufficiently big. The house in Sadar Ward is a three storeyed house. We have earlier stated that Manjibhai was a self made man. Out of the earnings from his business he had acquired two houses at Raipur. One of these houses is in Sadar Ward and the other in Baijnath Para. It appears that these houses are sufficiently big. The house in Sadar Ward is a three storeyed house. At the time when the will was made, part of the ground floor was used for the purpose of shop of Manjibhai and part of it had been let out to a tenant carrying on business in the name of Ghanshyam Cloth Stores. The first and second floors were partly used for residential purposes and the remaining parts were let out to tenants. There was one tenant in the first floor and similarly one tenant in the second floor. It has come in the evidence of Jadhavji (D. W. 15)that the income from rent of these two houses was about Rs. 809 per month. The will recites that the running business with assets and liabilities had already been gifted to the defendant. It then directs that after the testators death the two houses would be entered in the municipal records in the name of Amritbai and she will have the right to recover rent of the houses and after paying municipal taxes etc. in respect of the houses she will be absolute owner of the balance of the rental income. It further directs that the defendant will have the right to use the shop portion of the ground floor for his shop and Amritbai will have no right to recover rent from him. It is also provided that the defendant will have the right to reside in that part of the second floor which was used for residential purposes without liability of payment of rent. The residential part of the first floor was given to Amritbai and the testators mother for their residence. The maintenance of the mother was made the responsibility of both Amritbai and the defendant. To put it briefly, the bequest to Amritbai was a life estate in the two houses subject to the right of the defendant to use a part of the ground floor of the house in Sadar Ward for his shop and a part of the second floor of the same house for his residence. To put it briefly, the bequest to Amritbai was a life estate in the two houses subject to the right of the defendant to use a part of the ground floor of the house in Sadar Ward for his shop and a part of the second floor of the same house for his residence. The testators mother was also given a right of residence in a part of the first floor. After Amritbais death the defendant is to become owner of the two houses. It is a matter of some importance that Amritbai is to enjoy absolute ownership of the income from the houses which, as earlier stated, was about Rs. 800 per month at the time when the will was made. The will also directs that Amritbai will have full ownership over the ornaments in her possession. An insurance policy on the life of the testator for a sum of Rs. 18,000 was also bequeathed to Amritbai subject to the liability of payment of death duty. The will recites that Amritbai had consented to the dispositions made in it. It further recites that in case Amritbai remarries she would be divested of the estate given to her under the will. ( 20. ) WE have to consider the background in which the will was made. Manjibhai was a self made man. Manjibhai adopted the defendant as a son and gave him college education and got him married. The defendant was managing the business during the illness of Manjibhai. Manjibhais wife Amritbai is illiterate. In these circumstances, it cannot be said that the dispositions made in the will were in any way unreasonable The running business was given to the adopted son and life estate over the immovable properties was conferred on the wife. Having regard to the income from the houses, it cannot be denied that sufficient provision was made for the maintenance of Amritbai, The provision in the will that Amritbai will lose the estate in case of remarriage has been criticised on the ground that it was unnatural for Manjibhai to think that his wife who was then fifty years of age would remarry after his death. In our opinion, the provision is not unnatural. In our opinion, the provision is not unnatural. It only shows that Manjibhai, who knew the worth of money, thought of the possibility that his wife who is illiterate may, after his death, come under the influence of some mischief monger who may only to grap the property persuade her to remarry. It is not suggested that in Gujarati Mochi community to which the parties belong remarriage of widows is an uncommon- feature. In our opinion, the recitals and dispositions of the will are natural and they do not show, as observed by the District Judge, that the will was prepared by the defendants well wishers. ( 21. ) THE next thing to be seen is whether the physical and mental condition of Manjibhai was such that he could understand the dispositions made in the will. It is not in dispute that Manjibhai was suffering from cancer of the throat. The disease was first discovered sometime towards the end of -1964. Manjibhai went for his treatment to Bombay, Vellore and Nagpur. Although amritbai disputed the fact that Dr, Banjari was Manjibhais family physician, she has admitted in her evidence that Dr. Banjari was an old friend of Manjibhai and he accompanied Manjibhai to all these places where he went for his treatment. It has come in the evidence of Dr. B. P. Dubey (P. W. 2), examined by the plaintiffs, that Dr. Banjari was Manjibhais family physician. The District Judge has rejected the evidence of Dr. Dubey who has deposed that he had come to give glucose injection to Manjibhai on 8th and 9th February 1966 and he found that Manjibhai was in a semi-conscious state due to toximia. Dr. Dubey has admitted that at the time when he came to give glucose injunction dr. Banjari who was a family physician of Manjibhai was present. Dr. Dubey admits that on no other occasion he had treated Manjibhai. It is difficult to understand that when Dr. Banjari was available why Dr. Dubey was called for giving glucose injections. The District Judge has discussed the evidence of dr. Dubey (P. W. 2) and has rejected it as wholly false. We agree with that finding. The question regarding the state of health and mental capacity of manjibhai must be decided essentially on the evidence of Dr. Banjari (D. W. 14 ). Dr. Dubey was called for giving glucose injections. The District Judge has discussed the evidence of dr. Dubey (P. W. 2) and has rejected it as wholly false. We agree with that finding. The question regarding the state of health and mental capacity of manjibhai must be decided essentially on the evidence of Dr. Banjari (D. W. 14 ). Dr. Banjari has stated that Manjibhai experienced difficulty in speaking but he could speak in low tones and whatever he said could be understood. He has further deposed that to make Manjibhai hear one had to speak a bit loudly. He has also deposed that Manjibhais hand used to shake while writing and signing The evidence of Dr. Banjari, however, makes it clear that the mental faculties of Manjibhai were not affected. There is no suggestion in the statement of Dr. Banjari that Manjibhais faculty to read was affected by the disease. The evidence of Pendharkar (D. W. 11), Jadhavji (D. W. 15) and Mohanlal (D. W. 18) also discloses that Manjibhais power of understanding was not affected and he could understand the implications of the dispositions made in the will. We accept the evidence of Dr. Banjari (D. W. 14) and these witnesses that Manjibhai was mentally fit and could understand the dispositions made in the will when it was read out to him. ( 22. ) IT is true that Manjibhai died about six or seven days after the execution of the will. That does not, however, show that on 7th February 1966 when the will was executed Manjibhai was not in a sound disposing mind. It may be noticed in this connection that on 30th January 1966 Manjibhai called a meeting of the Samaj at his residence. In this meeting he resigned from the Presidentship ana handed over the cash balance of the Samaj to the new President mohanlal and made a donation of Rs. 10,000 to the Samaj. The photograph taken on that occasion is Ex. D-6 which does not show him to be in a very weak state of health. The District Judge has remarked that if Manjibhai intended to make a will he would have announced this fact in the meeting of the samaj just as he declared the fact that the defendant was his adopted son. We do not agree. D-6 which does not show him to be in a very weak state of health. The District Judge has remarked that if Manjibhai intended to make a will he would have announced this fact in the meeting of the samaj just as he declared the fact that the defendant was his adopted son. We do not agree. The adoption was a completed act and, therefore, the fact of adoption was declared in the meeting. The will was till then not made and, therefore, there was no question of proclaiming it in the meeting. ( 23. ) THE next thing to be noted in the context of the will is that it was openly made. Apart from the presence of the two advocates, family doctor and other attesting witnesses, Manjibhais wife Amritbai and his mother were both present throughout at the time when the will was executed. Amritbai has no doubt denied the fact that she was present at the time when the will was executed. She has stated that a copy of the will Ex. P. 1 produced by her was given to her by Jadhavji a week or so after the death of Manjibhai. The evidence of amritbai has not been believed by the District Judge on this point. In our opinion, it has been rightly held as stated by all the witnesses present at the time of execution of the will, including Sharma (P. W. 3) examined by the plaintiffs, that Amritbai was , then also present and a copy of the will signed by Manjibhai was given to her on that occasion. It has also been deposed by all these witnesses that Amritbai had raised no objection whatsoever to the making of the will by Manjibhai either on the ground that he was not in a fit condition to make the will or that the dispositions made in the will were unnatural and not acceptable to her. The fact that the will was openly executed by Manjibhai in presence of members of his family, two senior advocates, two important persons of the community and the family doctor, is a circumstance which supports that Manjibhai was in a fit condition to understand the will and to execute it with full knowledge. Had Manjibhai not been in a fit condition, Amritbai would have naturally objected to the persons present. Had Manjibhai not been in a fit condition, Amritbai would have naturally objected to the persons present. The absence of any objection from her side is also a circumstance supporting the fact that Manjibhai was in a sound disposing mind when he made the will. ( 24. ) THE curious feature of the case is that the two advocates Pendharkar and Sharma have deposed contrary to what they endorsed on the will and we feel that it is mainly their evidence which led the District Judge to hold that the will was not valid. The will contains a typed endorsements "drafted by v. D. Pendharkar, Advocate, Raipur". This endorsement is admittedly signed and dated by Pendharkar who has appeared as D. W. 11. Pendharkar has, however, stated that the will was not drafted by him. According to his version he was called by some one to the residence of Manjibhai on 7th February 1966. When he reached there, a typed will was already there which was handed over to him. The will already bore a typed endorsement that it was drafted by him and he signed the same. The explanation given by him why he signed the endorsement although he had not drafted the will is somewhat amusing. He has stated that he signed it because for registration it is necessary that a person drafting the document should have signed it and, therefore, to avoid any difficulty in registration of the will he signed the same. On the face of it, the explanation is puerile. There was no talk of registration of the will at that time. Moreover, it is not necessary that a document which has got to be registered should be signed by the person who has drafted it. For some reason or the other Pendharkar was not prepared to admit that the will was drafted by him and, therefore, he has given a false explanation. Pendharkar, as observed by the District Judge, is a senior advocate. It is difficult to believe that a senior advocate will sign a will stating that it has been drafted by him without actually drafting it. There is evidence of other witnesses to which we will immediately refer that instructions were given to Pendharkar by Manjibhai for drafting the will and the typed will prepared in accordance with the instructions was brought by Pendharkar. There is evidence of other witnesses to which we will immediately refer that instructions were given to Pendharkar by Manjibhai for drafting the will and the typed will prepared in accordance with the instructions was brought by Pendharkar. Jadhavji (D. W. 15) and Mohanlal (D. W. 18), have both deposed that on 6th February 1966, a day before the execution of the will, manjibhai had called them. Pendharkar was then present. Manjibhai instructed Pendharkar to draft a will. Pendharkar then noted the nature of dispositions and other details which Manjibhai wanted to incorporate in the will. It was in accordance with those instructions that Pendharkar brought a duly typed will on 7th evening when it was executed. We have no hesitation in rejecting the evidence of Pendharkar (D. W. 11) on this point and in believing Jadhavji (D. W. 15) and Mohanlal (D. W. 18) that Manjibhai had instructed Pendharkar to draft the will and it was in accordance with the instructions of Manjibhai that the will (Ex. D. 12) was drafted and prepared by Pendharkar. Dr. Banjari (D. W. 14) has also stated that a day before the execution of the will Manjibhai had told him that he wanted to make a will and that he was getting a will drafted by Pendharkar. There is a slight discrepancy in the evidence of Jadhavji and Mohanlal on this point. These witnesses say that Dr. Banjari (D. W. 14)was also present at the time when instructions for drafting the will were given to Pendharkar by Manjibhai. In our opinion, Dr. Banjaris evidence must be correct that he was not present but he must have come to Manjibhais house soon thereafter so as to create an impression on the minds of Jadhavji and mohanlal that he was also present at the time when instructions for drafting the will were given. Now coming to the evidence of execution of will, Sharma (P. W. 3) has been examined by the plaintiffs. We have already stated that this witness made an endorsement on the will that it was executed in his presence by manjibhai after he had accepted the same. Sharma is also a senior advocate. Now coming to the evidence of execution of will, Sharma (P. W. 3) has been examined by the plaintiffs. We have already stated that this witness made an endorsement on the will that it was executed in his presence by manjibhai after he had accepted the same. Sharma is also a senior advocate. In the normal course neither Sharma nor Pendharkar would have signed the will or would have become in any way associated with it had they suspected that manjibhai was not in a mentally fit state to understand the dispositions contain ed in the will. Curiously enough, Sharma has deposed in his evidence that manjibhai was not in a fit condition to understand the contents of the will and that this was his condition not only on 7th, when the will was executed, but also from a few days earlier to it. He has, however, admitted that the endorsement made by him on the will was correct and that the will was read over and accepted by Manjibhai before he executed it. He has, however, tried to explain that after the will was read out it was placed before Manjibhai for his signature who slowly signed it and, therefore, the endorsement is correct that Manjibhai had accepted the will. Sharma has also admitted that he had seen at the time of execution of the will Dr. Banjaris endorsement on the will that Manjibhai was in full senses and in perfect understanding, but he has given no explanation why he did not object to that endorsement. To put it briefly, Sharma (P. W. 3) has given no explanation as to why he became a party to the will as an attesting witness if he knew, as he now says, that Manjibhai was not in a condition to understand the dispositions. In our opinion, Sharmas evidence about the mental condition of Manjibhai that he was not in a position to understand the dispositions made in the will is false. Sharma has also stated that a copy of the will was also signed by Manjibhai and this copy was given to Amritbai who had raised no objections. This part of Sharmas evidence is, in our opinion, true because it is supported by all other witnesses present on the occasion. Sharma has also stated that a copy of the will was also signed by Manjibhai and this copy was given to Amritbai who had raised no objections. This part of Sharmas evidence is, in our opinion, true because it is supported by all other witnesses present on the occasion. Pendharkar (D. W. 11), although denying the fact and, in our opinion, untruthfully, that he drafted the will, has deposed that he felt that Manjibhai was in a position to understand the dispositions properly at the time of execution of the will. In the examination-in-chief he has said that he had read out the will, In his cross-examination he has, however, stated that he himself did not read out the will but some other person who was sitting there read it out. Jadhavji (D. W. 15) , and Mohanlal (D. W. 18) have both deposed that first the will was read out by pendharkar and then a copy of the same which was also there was read out by jadhavji. We believe the evidence of these witnesses that Pendharkar also read out the will. Pendharkars statement in cross-examination that he did not read out the will may be because of confusion. Pendharkar has further stated that a copy of the will was also signed by Manjibhai and that Manjibhais wife amritbai was all along present and she did not raise any objection. Dr. Banjari (D. W. 14) deposed that the will was brought by Pendharkar and he read it out, and that Manjibhai was in a fit condition to understand the will. He has further stated in his cross-examination that he also questioned Manjibhai about the contents of the will and he had found that Manjibhai had fully understood the same. Dr. Banjaris evidence has been criticised on the ground that this part of his statement that he questioned Manjibhai about the contents of the will is not corroborated by other witnesses. In our opinion, no such question was directly put to other witnesses and, therefore, that part of the evidence has not come in the statements of other witnesses. Dr. Banjari as earlier, stated, made and endorsement on the will that Manjibhai was in his full understanding and senses. It is not unlikely that he may have put a few questions to Manjibhai to make sure that he had understood the contents of the will. We believe his statement. Dr. Dr. Banjari as earlier, stated, made and endorsement on the will that Manjibhai was in his full understanding and senses. It is not unlikely that he may have put a few questions to Manjibhai to make sure that he had understood the contents of the will. We believe his statement. Dr. Banjari has also not stated that a copy of the will was read out by Jadhavji (D. W. 15) as deposed by Jadhavji and Mohanlal. On this point also, it appears to us that a direct question was not put to Dr. Banjari whether a copy of the will which was also signed at that time and which was given to Amritbai was read out by Jadhavji. Had a direct question been put to him, we are sure he would have supported the evidence given by Jadhavji (D. W. 15) and Mohanlal (D. W. 18 ). Jadhavji and Mohanlal have given consistent statements that the will was brought by Pendharkar (D. W. 11), it was read out by him and a copy of the will which was also signed at the same time by Manjibhai was read out by Jadhavji. This copy was handed over to Amritbai. We believe the statements of Jadhavji and Mohanlal. All the witnesses have proved the due execution and attestation of the will in accordance with the endorsements contained in the will. ( 25. ) HAVING considered the evidence as a whole, we have no hesitation in believing the defendants case that the will was drafted on the instructions of Manjibhai by Pendharkar and that it was executed by Manjibhai with full understanding after it was read out to him and he had understood the same. It is true that advocates, Sharma and Pendharkar, have not fully supported this story. But their statements are contradicted by their own endorsements made on the will and to that extent we have no hesitation in rejecting their evidence. As earlier stated, the dispositions made in the will are natural, the will was openly made in presence of important persons, Amritbai was all along present during the execution of the will and she raised no objection to it at that time and a copy of the will signed by Manjibhai was given to her. As earlier stated, the dispositions made in the will are natural, the will was openly made in presence of important persons, Amritbai was all along present during the execution of the will and she raised no objection to it at that time and a copy of the will signed by Manjibhai was given to her. Manji bhai was, no doubt, ailing from cancer and his signatures which appear on every page of the will are a bit shaky, but these suspicious circumstances have been explained by cogent and satisfactory evidence that the will was drafted according to Manjibhais instructions and that he executed the will after fully understanding the dispositions made in it in a sound disposing mind. ( 26. ) THE question then is whether there was any gift made by Manjibhai of the business with its assets and liabilities in favour of the defendant. In this connection, the pleading in the written statement is to the effect that this gift was made by Manjibhai in September or October 1964. The only witness on the point of gift is the defendant himself. He has stated that this gift was made orally sometime after 1965. There is, therefore, variance between pleading and proof about the time when the gift was made. The recitals contained in the will, however, support the case of gift. The running business with its assets and liabilities constituted movable property and a gift of it could be made by putting the defendant in possession of the property. It clearly appears that Manjibhai due to his ailment was unable to look after the business which was being managed by the defendant. The defendant was, therefore, in possession of the business with its assets and liabilities. If it were not true that the business had been gifted to the defendant, such a recital would not have occurred in the will and Manjibhai would have specifically bequeathed the business in the will to the defendant. In our opinion, therefore, the evidence of the defendant appears to be true that sometime after 1965, when Manjibhai ceased to be in fit condition to manage the business, the business with its assets and liabilities was gifted to the defendant. ( 27. In our opinion, therefore, the evidence of the defendant appears to be true that sometime after 1965, when Manjibhai ceased to be in fit condition to manage the business, the business with its assets and liabilities was gifted to the defendant. ( 27. ) EVEN assuming that no gift of the business was made by Manjibhai in favour of the defendant, there is a provision in the will which will enable the defendant to get the business with its assets and liabilities as a legatee under the will. After indicating how the houses and their income would be enjoyed by amritbai, the will provides : "i will that after my death, my above mentioned both houses shall be enjoyed by my wife Amritbai in accordance with the directions given above. But after my death my son mulchand would be only person entitled to my other movable properties and he would be the sole owner thereof. My wife will have no right over that property. But my wife would be the full owner of the ornaments which are in her possession. Similarly, she would be entitled to the money payable under the insurance policy on my life. " The above provision in the will would show that all movables of the deceased, excepting the ornaments in possession of his wife and the money payable under the insurance policy, were bequeathed in favour of the defendant. Therefore, even if the gift failed for want of proof, the defendant would be entitled to get the business with its assets and liabilities as a legatee under the will. ( 28. ) AS a result of the above discussion, the appeal filed by the defendant is allowed and the plaintiffs suit is dismissed. The cross-objection fails and is dismissed. Parties shall bear their own costs throughout. Appeal allowed.