A. B. Periera v. Ivy Periera — 1980 DIGILAW 357 (KER)

JUDGMENT T. Chandrasekhara Menon, J. 1. Mrs. Mary Anne Periera died on 29th March, 1965. Her son Mr. A. B. Periera, Advocate filed O. P. No. 69 of 1976 in the District Court, Trivandrum for granting probate or letters of administration in respect of a Will executed by his mother on 17th October, 1947 which was alleged to be her last testament. Counter petitioners 1 to 3 in the said petition were Mrs. Mary Anne Periera's daughter and counter petitioners 4 and 5 were the widow and son of a deceased son, Dr. Joseph Pereira. Petitioner's right to get probate or letters of administration was challenged by counter petitioners 4 and 5, who, while admitting the execution of a Will by the deceased Mrs. Periera contended that she had revoked the same and executed another Will on 26th February, 1966 which was her last Will and testament wherein the legatee was Dr. Periera. The major bequest was in favour of the lawyer son as per the Will of 1947. Mr. A. B. Periera's petition was subsequently converted into a regular suit numbered as O. S. No. 5 of 1977. 2. Defendants 4 and 5 in that suit, counter petitioners 4 and 5 in the O. P., filed another original petition -- O. P. No. 119 of 1977 for grant of letters of administration in their favour on the basis of the Will of 26th February, 1966. There the first counter petitioner, Mr. A. B. Periera questioned the later Will was vitiated by fraud, undue influence and misrepresentation. His case was that the Will of 1966 was not executed by her mother of her own Will but it was got executed at the instance of his brother, the Doctor under whose influence she was at the time of the execution of the Will. The testatrix was completely bed ridden at the time of its execution and she had been enfeebled by her long illness. In the circumstances, the Will cannot be considered to be a conscious or voluntary act on the part of the testatrix. This petition was also converted into an original suit and numbered as O. S. 1 of 1978. Since common questions arose for consideration in both the suits, they were tried together, evidence being recorded in O. S. 1 of 1978. 3. The learned District Judge, after consideration of the evidence, in the case held that Ext. This petition was also converted into an original suit and numbered as O. S. 1 of 1978. Since common questions arose for consideration in both the suits, they were tried together, evidence being recorded in O. S. 1 of 1978. 3. The learned District Judge, after consideration of the evidence, in the case held that Ext. A1, the Will dated 26th February, 1966 is the last Will and testament of Mrs. Mary Anne Periera and the same is not vitiated by fraud, undue influence, coercion or misrepresentation. The testatrix was fit and competent to execute the Will. The execution of this Will was a voluntary and conscious act on her part. Therefore, Ext. B3 -- the Will in favour of Mr. A. B. Periera which is dated 17th October, 1947 (Ext. B3 is only a copy, the original is not before the court) is not the mother's last Will and testament and it stood revoked and set aside by Ext. A1 Will. In the light of these findings, the District Court decreed O. S. 1 of 1978 in favour of the plaintiffs, they being granted letters of administration in respect of the assets of the deceased testatrix with Ext. A1 Will annexed on production of the Estate Duty Certificate within the time specified. The other suit -- where Mr. A. B. Periera was the plaintiff -- O. S. No. 5 of 1977 was dismissed. The parties were directed to suffer their costs in both the suits. 4. A. B. Periera has come up in appeal here -- A. S. No. 164 of 1979 is from O. S. 1 of 1978 while A. S. No. 170 of 1979 is from O.S. 5 of 1977. In considering the questions raised in the appeal by the appellant, we might first take note of the undisputed facts of the case and the basis for the decision rendered by the learned District Judge. 5. That Ext. B3 Will was executed by the mother is not disputed. No doubt, the original was not forthcoming, the appellant's case being that his brother, the Doctor being actually residing with his mother in the last days, would have taken possession of the same and his widow and son are not producing it now. 5. That Ext. B3 Will was executed by the mother is not disputed. No doubt, the original was not forthcoming, the appellant's case being that his brother, the Doctor being actually residing with his mother in the last days, would have taken possession of the same and his widow and son are not producing it now. There is no case that the said Will was vitiated by any suspicious circumstances, the only case of the contesting respondents being that it was revoked by the last Will, Ext. A1. Under Ext. B3 the appellant was almost the sole legatee with direction to pay certain amounts to one of the sisters. According to the respondents, the appellant's alliance with a certain Mrs. Baker, his decision to marry her, a widow with nine children and whose former husband was a Muslim and his subsequent marriage with her made Mrs. Mary Anne Periera bitter and turn against this son. At the time of the marriage, the appellant was 54 while Mrs. Baker was 62. No doubt, the respondents would urge that Mrs. Baker was a person of bad repute but we might here itself state that there is no worthwhile evidence with respect to that. Anyhow, the respondents would contend that it was disregarding the mother's stout opposition that the defendant contracted his marriage with Mrs. Baker. At the time of marriage and subsequently Dr. Joseph Periera was staying with his mother. This was so when the Will Ext. A1 was executed. PW 1 was the Sub Registrar who registered Ext. A1 Will. The Will was registered at the residence of the testatrix at Trivandrum. It may also be noted here that the appellant has got a case that the testatrix could not see at the time of the alleged execution of Ext. A1 as she was suffering from cataract which is not admitted by the contesting respondents. 6. It might be stated here that besides the Sub Registrar, PW 1 and Dr. Periera's son, Mathew Periera (the second respondent in A S. 164 of 1979 and fifth respondent in the other appeal examined as PW 3) the contesting respondents plaintiffs in O. S. 1 of 1978 have examined Mrs. Daicy Gomez as PW 2, this witness being in a way related to the parties and a neighbour of the testatrix. Periera's son, Mathew Periera (the second respondent in A S. 164 of 1979 and fifth respondent in the other appeal examined as PW 3) the contesting respondents plaintiffs in O. S. 1 of 1978 have examined Mrs. Daicy Gomez as PW 2, this witness being in a way related to the parties and a neighbour of the testatrix. The appellant besides himself (DW 2) had examined a near relative as DW 1. 7. PW 1 had said in his evidence that he had complied with all the formalities in the matter of registration. The testatrix had told him that she had read the will and the same had been prepared under her instructions. She was fully conscious and he had no doubt regarding the testamentary capacity of the executant. He also stated that the testatrix put her signature without any assistance though the signature in the Will had been put before his arrival. 8. PW 2, a relative of the parties and a neighbour of the testatrix would state that her son's marriage with Mrs. Baker was much resented to by the testatrix and he was not even prepared to permit him to proceed for the marriage from her house. The mother had forbidden the defendant and his bride to enter into her house. However, this witness also stated that the testatrix requested her to take the defendant to her house and allow him to proceed for his marriage from her house. For that, the testatrix had pleaded with her as otherwise the appellant would have to go for his marriage from the road. Therefore PW 2 took the appellant to his house and also accompanied him to the church. A person staying with this witness functioned as the best man for the bridegroom. According to her, she was present when the testatrix died and she was talking to her quite sensibly even just before her death, though she was getting weaker. The testatrix, according to her, was moving about the house even shortly before her death and she did not have a fall as alleged by A. B. Periera. DW 1 the other close relative would however depose that Mrs. Mary Anne Periera had lost her eye sight some time before her death. She was also bed ridden on account of a fall for three months before her death. He had written cheques for the deceased Exts. DW 1 the other close relative would however depose that Mrs. Mary Anne Periera had lost her eye sight some time before her death. She was also bed ridden on account of a fall for three months before her death. He had written cheques for the deceased Exts. B1 and B1(a) as she could not see well. 9. The District Court held that the execution and registration of Ext. A1 is proved beyond doubt. In coming to this conclusion, apart from the Sub Registrar's evidence, the court would say that the appellant had practically admitted that the signature in Ext. A1 was that of her deceased mother. Even DW 1 had admitted that the signature in Ext. A1 was that of the testatrix. On the ground that DW 1 and the appellant were moving as friends in mutual trust and confidence and as it was admitted by DW 1 that the first defendant in O.S. 1 of 1978 (appellant) used to visit him almost every day, the learned District Judge did not accept his evidence that Mrs. Mary Anne Periera had lost her sight some time before her death. 10. The learned District Judge was further of opinion based on the evidence of PWs 1 and 2 that the testatrix was not in a mentally enfeebled condition. According to the learned Judge, there appeared no ground to disbelieve the versions given by PW 2 on the relevant aspects of the case. Merely because deceased Dr. Periera was treating her that was no reason to brush aside her evidence as interested or untrustworthy. The court also came to the conclusion that the case of the present appellant that his mother lacked proper eyesight is improbable and unacceptable on the evidence. 11. According to the District Judge, the reference in Ext. A1 Will that the defendant (appellant herein) was acting in a wayward manner disobeying the wishes of his mother and he was acting in such a way as to bring ill repute to his aged mother, is to the marriage of the appellant with Mrs. Baker and therefore, the preference shown by the mother for her son, the Doctor in preference to her other son is very well explained and cannot stand as a suspicious circumstance. 12. Before delving into the questions arising in these appeals, we might look into the law on the matter. Baker and therefore, the preference shown by the mother for her son, the Doctor in preference to her other son is very well explained and cannot stand as a suspicious circumstance. 12. Before delving into the questions arising in these appeals, we might look into the law on the matter. The law is well settled in the light of the definite pronouncements of the Supreme Court in the matter. Gajendragadkar, J. as he then was speaking for a Court consisting of himself and Venkatarama Aiyar and Sarkar, J. J. neatly summed up the law in the following manner in H. Venkatachala v. B. N. Thimmajamma ( AIR 1959 SC 443 ) paras 18 to 22: "(18) What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S.67 and 68 Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting under S.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the persons concerned are made relevant. S.68 deals with the proof of the execution of the document required by law to be attested and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of providing its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, S.59 and 63 of the Indian Succession Act are also relevant. S.59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Similarly, S.59 and 63 of the Indian Succession Act are also relevant. S.59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. S.63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witness as prescribed. Thus the question as to whether the Will set up by the Propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will ? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. (19) However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon 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, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. (20) There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstance naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. The presence of such suspicious circumstance naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. (21) Apart from the suspicious circumstances to which we have just referred in some cases the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with Wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to Wills; but any objection to the use of the word 'conscience' in this context would, in our opinion be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. (22) It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. (22) It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, (50 Cal WN 895; AIR 1946 PC 156 ) "where a Will is charged with suspicion, the rules enjoin 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." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." 13. Venkatarama Ayyar, J., speaking for the Supreme Court earlier in Naresh Charan v. Paresh Charan ( AIR 1955 SC 363 ) said: "It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as 'undue'. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion - it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the Will cannot be attacked on the ground of undue influence. The law was thus stated by Lord Penzance in -- 'Hall v. Hall', [1868 (1) P and D 481 at p. 482 (C)]: "But all influences are not unlawful. The law was thus stated by Lord Penzance in -- 'Hall v. Hall', [1868 (1) P and D 481 at p. 482 (C)]: "But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid Will can be made. Importunity of threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, - these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, Will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his Will must be the offspring of his own volition, and not the record of some one else's." S.61 of the Indian Succession Act (39 of 1925) enacts that, "A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void " Illustration (vii) to the section is very instructive, and is as follows: "A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a Will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition, makes his Will in the manner recommended by B. The Will is not rendered invalid by the intercession and persuasion of B." Chandrachud, J., as he then was, pointed out in Beni Chand v. Kamla Kunwar ( AIR 1977 SC 63 ) (Para 9): "The question which now arises for consideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the Will by Jaggo Bai is proved satisfactorily. It is well settled that the onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. See Jarman on Wills (8th Ed., p. 50) and H. Venkatachala Iyengar v. B. N. Thimmajamma, [1959 Supp. (1) SCR 426 1 : AIR 1959 SC 443 ]. By 'free and capable testator' is generally meant that the testator at the time when he made the Will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the Will is discharged if the propounder leads evidence to show that the Will bears the signature or mark of the testator and that the Will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the Will cannot be used as evidence unless at least one attesting witness depending on availability, has been called for proving its execution as required by S.68 of the Evidence Act. But where, as in the instant case, the circumstances surrounding the execution of the Will are shrouded in suspicion it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence. The testatrix was advanced in age being past eighty years of age, the Will contains provisions which are prima facie unnatural since the only son is disinherited under it and the testatrix died five days after making the Will. There can be no dispute that these are gravely suspicious circumstances. But the propounder has, in our opinion, offered an explanation of these circumstances which ought to satisfy a prudent mind. Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circumstances attendant on the execution of the Will raise a suspicion as regards its due execution. But the propounder has, in our opinion, offered an explanation of these circumstances which ought to satisfy a prudent mind. Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circumstances attendant on the execution of the Will raise a suspicion as regards its due execution. The burden in testamentary cases is of a different order than in other cases in the sense that an attesting witness must be called, wherever possible, to prove execution, the propounder must remove the suspicion, if any, attaching to the execution of the Will and if there be any doubt regarding the due execution, he must satisfy the conscience of the court that the testator had a sound and disposing state of mind and memory when he made the Will. 'Reasonable scepticism, not an obdurate persistence in disbelief nor a resolute and impenetrable incredulity' is demanded of the testamentary judge: 'He is never required to close his mind to the truth.' See Harmes v. Hinkson, [1946 (50) Cal. WN 895 : AIR 1946 PC 156 )] Per Lord Du Parcq. Gajendragadkar, J., who spoke for the Court in Iyengar's Case [1959 Supp. (1) SCR 426 at page 446 : AIR 1959 SC 443 at p. 452] noticed these observations of Lord Du Parcq with approval and said: 'It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautions and circumspect.' " 14. In his well known work on Wills Theobald states that whenever a Will is prepared under circumstances which raise a well grounded suspicion that it does not express the true Will of a free and capable testator, it is for those who propounded the Will to remove such suspicion. The fact that the Will is prepared by or on the instructions of the person taking a benefit under it is a circumstance raising such suspicion and when the benefit is large the burden of proving the authenticity of the Will is correspondingly heavy. (Para 111 at page 43-13th Edn.) Reliance has been placed by the learned author on the decisions in Donnelly v. Broughton [1891 AC 435 (PC)] and Wintle v. Nye (1959 (1) WLR 284). 15. It is the positive case of the contesting respondents, namely plaintiffs in O. S. 1 of 1978, that Mrs. (Para 111 at page 43-13th Edn.) Reliance has been placed by the learned author on the decisions in Donnelly v. Broughton [1891 AC 435 (PC)] and Wintle v. Nye (1959 (1) WLR 284). 15. It is the positive case of the contesting respondents, namely plaintiffs in O. S. 1 of 1978, that Mrs. Anne Pereira had executed the Will of 17th October, 1947 under which the appellant was the legatee. Their case is that that Will had been set aside and revoked for proper reasons by the Will dated 28th December, 1966. In fact in the Will set up by them, Ext. A1, it is stated after mentioning about the earlier Will: - xxxxxxx Therefore, but for Ext. A1 the earlier Will would have been in force. The reason for executing Ext. A1 is stated to be the alleged behaviour of A. B. Pereira, as earlier detailed and also as quoted from Ext. A1: xxxxxxx The alleged intention is to benefit the Doctor son. We find some of the recitals in Ext. A1 not to be quite consistent with facts. For example, in 1960 when Dr. Pereira was examined in a case B R.C. No. 13 of 1960, where he was sought to be evicted from his sister's house, he stated about his mother: "I am not at logger heads with my mother. But she has no natural feelings towards me. I guess that my mother and brother inlaw are at the bottom of the proceedings." (Ext. B7) It is also clear from the evidence that Mr. A. B. Pereira was sending substantial amounts to the mother. In fact, in the letter written by the mother to Pereira, she has asked for money from A. B. Pereira (See Ext. B5). We find the mother receiving Rs. 100 from A. B. Pereira in October 1965, sometime after she is alleged to have become displeased with Mr. Pereira on account of the alliance that he wanted to have with Mrs. Baker. [See the Money Order Coupon (though the month and year can be found out as October 1965, the date is not clear)]. At the time when the Will was executed, she was considerably old and was living in her residence with Dr. Pereira, his wife and son. In the Will Ext. A1, though complaint is made about A. B. Pereira's behaviour, it is not stated that his marriage with Mrs. At the time when the Will was executed, she was considerably old and was living in her residence with Dr. Pereira, his wife and son. In the Will Ext. A1, though complaint is made about A. B. Pereira's behaviour, it is not stated that his marriage with Mrs. Baker has created the rift between the mother and the son, and surprisingly the earlier Will is revoked and the new Will is written after the Death of Mrs. Baker, when there could have been no apprehension on the mother's side, that her property would go to Mrs. Baker. 16. Even on the evidence of PW 3 it is difficult to believe that there have been such animosity in the mother against Mr. A. B. Pereira because of his marriage. May be, she did not like the marriage. We might note that PW 2 says that she was asked to take Mr. A. B. Pereira to her house and to take him to the Church for the marriage. Otherwise, the mother was afraid, he had to go for the marriage from the road. There would not have been this apprehension on her part, if she did not care at all for her son and she wanted him to be totally cut off from her as is sought to be made by PW 2. 17. In considering the evidence of PW 2 and DW 1, the close relatives, we have to take into account of the fact that each of them is trying to side with the rival claimants. In the circumstances, their evidence will have to be taken with some caution. It might not be a case of speaking deliberate falsehood. In their anxiety to help the persons with whom they are siding it is not unnatural if some embellishments or colour is given to the facts as they remember. We have to take their evidence as good in parts only as H. R. Krishnan, J., said in another context in Ramlal Singh v. State ( AIR 1958 MP 380 ). "......... the principle 'Falsus in uno falsus in omnibus' has long been exploded. In fact, a rigorous application of this principle will lead to the rejection of the evidence of nearly every witness in nearly every case, because the witnesses in law courts almost always add finishing touches to their evidence. "......... the principle 'Falsus in uno falsus in omnibus' has long been exploded. In fact, a rigorous application of this principle will lead to the rejection of the evidence of nearly every witness in nearly every case, because the witnesses in law courts almost always add finishing touches to their evidence. On the other hand, if a witness's statement has a very considerable admixture of falsehood, then it may not be possible for the court to pick out the grains of truth from the mass of chaff". The learned Judge interestingly concluded the matter like this (at page 385) : "Here as in other matters, the question is one of degree and the stuff has to be rejected if hopelessly mixed with falsehood. To take a homely example, it is perfectly true that milk unadulterated with water is practically unobtainable anywhere in our country, and the householder who insists upon absolutely pure milk will have most often to go without it. But that does not mean that he is going to accept so called milk in which the larger share is of water. He draws the line where the mixture still retains the taste and colour of milk; and rejects all the specimens in which the water content is such as to mask the very colour and taste of what he wants. In exactly the same manner courts have to draw the line at the stage where the admixture of falsehood is such as entirely to change the aspect of the case. Not being endowed like the legendary swan with the capacity of extracting drops of milk from a pot of water, courts have necessarily to reject the whole evidence where the false additions are overwhelmingly large." 18. In considering the question before us, we have to take due note of the fact that Dr. Pereira, who, a few years back, was on such unhappy relation with his mother, as is seen from his evidence in the rent control case, is now given as per the disputed Will more or less the whole of her assets as such. This Will is written at a time when that old mother was in a rather helpless condition, was living with this Doctor son, his wife a trained nurse, and their son. It may be that the mother was not completely disabled or laid up. As Jarman on Wills (Vol. I, 8th Edn. This Will is written at a time when that old mother was in a rather helpless condition, was living with this Doctor son, his wife a trained nurse, and their son. It may be that the mother was not completely disabled or laid up. As Jarman on Wills (Vol. I, 8th Edn. Page 15) says 'the general rule is that the onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable testator'. No doubt, he adds that if a Will is rational on the face of it, and appears to be duly executed, it is presumed, in the absence of evidence to the contrary to be valid. The learned author states at page 51: "In cases of weakness of mind arising from the near approach of death, strong proof is required that the contends of the Will were known to the testator, and that it was his spontaneous act .......................... a suspicion is justly entertained of a Will conferring large benefits on the person by whom or by whose agent it was prepared, or of a Will in favour of a medical attendant in whose house the testator resided; and the rule requiring strict proof is not confined to these cases, but extends to all cases in which circumstances exist which excite the suspicion of the Court". 19. Williams on "Executors and Administrators" Vol. I, 13th Edition Page 92 quoted in H. Venkatachala v. B. N. Thimmajamma ( AIR 1959 SC 443 at 453) states: "Although the rule of Roman Law", it is observed in Williams, that 'Qui se script haeredem' could take no benefit under a Will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the Court, and calls on it to be vigilant and zealous 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 does express the true will of the deceased." 20. The question before us is therefore, whether this suspicion has been removed. The question before us is therefore, whether this suspicion has been removed. It is very difficult to come to that conclusion. The evidence of the Sub Registrar is not of much help in the case. What exactly her mental stage at the time of the execution of the Will, even if she was mentally fit whether she had understood all the terms of the Will, in what manner the Will has been read over to her when she signed it etc., cannot be positively inferred from the evidence of PW1. The scribe is stated to be alive. He is not examined. Who gave him instructions to prepare the Will, whether a draft of the Will was prepared and read out to her, whether the fair copy was read out if so, by whom are all matters relevant for the purpose of the case, but nobody speaks about them. Then again Dr. Periera was alive for nearly 9 years. If there was nothing for him to hide he would have taken probate or letters of administration. He is not seen to have taken out the Will. One sister, an educated lady and a pensioner was staying with the mother and Doctor brother. She did not come forward to support Ext. A1. Another sister to whom an amount of Rs. 7,000 is directed to be given is also not examined to bring out when she had been told of the Will Ext. A1; an unregistered receipt alleged to have been issued by her is produced at a late stage, but not properly proved by examining her. Even the widow of Dr. Periera who was in the house all along has not gone to the box and to speak about these matters. It might also be noted that the mother died a few weeks after the execution of the Will. There is not the evidence of any attesting witnesses in the case. No doubt, their evidence is impossible because they are dead. But, then the question is, is the other evidence adduced in the case sufficient to cast away all doubts from the mind of the Court? 21. There is not the evidence of any attesting witnesses in the case. No doubt, their evidence is impossible because they are dead. But, then the question is, is the other evidence adduced in the case sufficient to cast away all doubts from the mind of the Court? 21. As is clear from the discussion above, the propounder of a Will has to show that the Will was signed by the testator, that he was at the relevant point of time in a sound disposing state of mind, that he clearly understood the nature and manner of the dispositions in the instrument and their effect, that he had signed the Will of his own free will and in the presence of the two witnesses who attested it in his presence and in the presence of each other. When these are established, the propounder has discharged the onus resting on him. However, in cases where there are suspicious circumstances in the execution of the Will, such as, where the signature is doubtful, the testator is very old and of feeble mind, when the dispositions on the face of it seem to unduly weighted in favour of the propounder or is obviously unfair, the propounder will have to remove the suspicion by clear and satisfactory evidence. As an American Judge put it in Den v. Johnson (2 Southard R.459) confirmed in appeal in 246 App. Div, 576 : 283 N. Y. S. 1023 (1935) the law on the point is (quoted in Sanjiva Row's Commentaries on the Indian Succession Act at pages 161 and 162) - "(1) That in all cases the party propounding the will is bound to prove to the satisfaction of the Court that the paper in question does declare the Will of the deceased, and that the supposed testator was, at the time of making and publishing the document propounded as his will, of sound and disposing mind and memory. (2) That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the Will, and the testamentary competency of the attesting witnesses, but remains with the party setting up the Will. (2) That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the Will, and the testamentary competency of the attesting witnesses, but remains with the party setting up the Will. (3) That if, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question does contain the last Will of the deceased, the Court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) That when it is sought to establish a posterior Will, to overthrow a prior one made by the testator in health, and under circumstances of deliberation and care, and which is free from all suspicion, and when the subsequent Will was made in enfeebled health, and in hostility to the provisions of first one; in such case the prior Will is to prevail, unless he who sets up the subsequent one can satisfy the conscience of the Court of Probate that he has established a Will. And also the prior Will is to prevail unless the subsequent one is so proved to speak the testator's intentions, as to leave no doubt that it does so speak. (5) That it is not the duty of the Court to strain after probate, nor in any case to grant it, where grave doubts remain unremoved, and great difficulties oppose themselves to so doing. (6) That the heirs of a deceased person can rest securely upon the statutes of descents and distributions, and that the rights thus secured to them can only be divested by those claiming under a Will and in hostility to them, by showing that the Will was executed with the formalities required by law, and by a testator possessing a sound and disposing mind and memory ............" 22. The following quotation from Lord Hatherley's Judgment in Fulton v. Andrew (LR 7 HL 448) is also apposite in this context: "There is one rule which has also been laid down by the Courts having to deal with Wills, and that is, that a person who is instrumental in the framing of a Will, and who obtains a bounty by that Will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the Will was read over to the testator and that he was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a Will. They have also thrown upon them the onus of showing the righteousness of the transaction." 23. In this case, the testatrix was 85 and old years of age. She died just after a month of the execution of the Will. Under the Will, a son - a physician - who was residing with the deceased, with his wife and son was the sole legatee (subject to the direction for payment of Rs. 7,000 to one of the daughters). In the Will recitals are made to the effect that the Doctor was looking after the affairs of the mother, helping her and nursing throughout which on the evidence in the case appears to be not quite true and further the Will totally disregards the other son, who was the main beneficiary in the earlier Will on the ground that he is disobeying her, leading a wayward life. This attack on the second son is said to be solely due to his marriage with an elderly widow with nine children. It is found from the evidence that even after this son had fixed up the marriage with the widow, the mother was getting remittance by money order from him. And the Will is executed after the death of the lady whom the appellant married. The signature appearing in Ext. A1 are found to be overwritten in two papers on the names of the testatrix written in Malayalam. And the Will is executed after the death of the lady whom the appellant married. The signature appearing in Ext. A1 are found to be overwritten in two papers on the names of the testatrix written in Malayalam. DW 1 has spoken about the eye trouble (cataract of both the eyes) of the testatrix which had compelled her to get cheques written for her by DW 1 at times. DW 1 has also spoken about a fall the testatrix had, injuring her hip before her death which compelled her to be in bed for about 3 months. No doubt, DW 1's evidence is controverted by that of PW 2. PW 1, the Sub Registrar says that he did not read the Will to the executant as she had said she had read it. The Will was presented for registration before him after the same had been signed by the testatrix and attested by the witnesses. On a consideration of the total circumstances in the case we are afraid that the plaintiffs in O. S. 1 of 1978 have not discharged the burden on them to remove the suspicions in the matter of the execution of the Will Ext. A1. 24. In the circumstances, we have no option but to dismiss the suit, O. S. 1 of 1978 and refuse the letters of administration prayed for therein. As regards Ext. B3 Will, as the only plea of the contesting respondents in respect of the same is that it had been revoked by Ext. A1 and as we have not accepted the due execution of Ext. A1, on the free will and volition of the testatrix, Ext. B3 Will have to be probated. Therefore, we decree O. S. 5 of 1977. The District Judge is directed to grant the probate in the manner provided in S.289 of the Indian Succession Act and subject to S.57 of the Kerala Court Fees Act. The two appeals are allowed as above. We direct that in the circumstances, the parties will bear their costs throughout in both the cases. 25. Before leaving the case, we think it may not be out of place to express what we feel in the matter. Though the evidence is not positive and definite for the court to come to a finding on the matter, it is likely the mother would have liked to provide for both the sons. 25. Before leaving the case, we think it may not be out of place to express what we feel in the matter. Though the evidence is not positive and definite for the court to come to a finding on the matter, it is likely the mother would have liked to provide for both the sons. Therefore, we hope the appellant as the member of an honourable and noble profession, will rise to the occasion to see that his brother's widow and son are duly provided for.