D. Amirthalingam v. Santhakumari — 1995 DIGILAW 342 (MAD)

Judgment :- 1. The plaintiff originally filed O.P.635/87 for the issue of probates in respect of the last Will and Testament executed by has mother Kuppulakshmi Ammal. As the defendant filed caveat, the O.P. was converted into T.O.S. and numbered as T.O.S. 33/88. 2. The plaintiffs case is his mother died on 17.5.83 at Padma Clinic Nursing Home, Madras. At the time of her death, she was residing with the plaintiff at No. 7, New No. 10, Telegraph Abboy Naidu Street, Madras. 1. The said Kuppulakshmi Ammal duly executed a Will and Testament at Madras on 11.3.1966 and the plaintiff has been appointed as the executor in the said Will. The plaintiff was not aware that the Will has to be probated. Only at the time of filing the petition, he came to know that the probate is to be obtained. Hence there is some delay in filing the petition, for seeking for probate. 3. The defendant, who is the sister of the plaintiff, has filed the written statement, contesting the claim of the plaintiff. Her case is that her mother Kuppulakshmi Ammal died intestate on 17.5.83. Both father and mother did not leave any Wilf. Her mother is the owner of the house at No. 10, Telegraph Abboy Naidu Street, Kondithope, Madras-79, which was given to her as Sreedhana and on the death of her mother Kuppulakshmi Ammal, the plaintiff and defendant, as legal heirs, are entitled to succeed to the property. She has also claimed share in the property of the father, who predeceased her mother. The further case of the defendant is that her mother was suffering from mental disorder and had been going through frequent depression attacks. She was not possessed of normal mental capacity and she was used to be admitted in the mental hospital for treatment for her mental disorder. The plaintiff is collecting the rents from the property, and protesting his conduct, the defendant issued a notice dated 19.5.83, claiming absolute rights to the mothers property and half share in the fathers agricultural lands. The plaintiff has also taken the jewellery of the mother and the defendant is entitled to the half share in the jewellery also. Since the plaintiff did not settle the matters amicably the defendant has filed suit C.S.624/87 for partition of the suit properties. The plaintiff has also taken the jewellery of the mother and the defendant is entitled to the half share in the jewellery also. Since the plaintiff did not settle the matters amicably the defendant has filed suit C.S.624/87 for partition of the suit properties. The plaintiffs claim that there is a Will left by their mother Kuppulakshmi Ammal is false and the alleged Will dated 11.3.66 is forged and prepared by the plaintiff for making unlawful gain. Taking advantage of Kuppulakshmi Ammals unsound health plaintiff had prepared the alleged Will. The plaintiff has done so in order to seek vengence on the defendant because the plaintiff agreed to give his daughter in marriage to the defendants son. The defendants son filed suit O.S. 8111/81 on the file of the City Civil Court, Madras against the plaintiff. Till 6.9.87, the advocate Commissioner appointed in the partition suit C.S.624/87 visited the suit property of the plaintiff, on 6.9.87 the plaintiff did not reveal about the existence of the Will executed by their mother as well as father. The theory of the existence of the alleged Will have come only recently and the delay in keeping the so called Will in cold storage itself proves forgery. The attestation of the Will by C.S. Narayanaswamy and T.N. Kasthurirangan is false, the said C.S. Narayanaswamy, one of the attestors, is an employee of late Dhakshinamoorty, the father of the plaintiff and the defendant. He has admitted to the defendant that the alleged Will dated 11.3.66 was not signed by him as a witness. The papers signed in 1970 or 1972 by C.S. Narayanaswamy in blank papers, which was signed by the said Kuppulakshmi Ammal has been misused by the plaintiff. The other witness T.M. Kasturirangan is the very close friend of the plaintiff and the alleged Will is only prepared by the plaintiff so as to deprive the defendant of her right to the properties. 4. The following issues arise for consideration; (1) Whether the Will dated 11.3.1966 is forged and prepared by the plaintiff as alleged in the written statement? (2) Whether the deceased testatrix was not of sound mind at the time of execution of the Will as alleged in the written statement? (3) To what relief are the parties entitled to? 5. Issue No. 1 : — The plea of forgery is put forth by the defendant. (2) Whether the deceased testatrix was not of sound mind at the time of execution of the Will as alleged in the written statement? (3) To what relief are the parties entitled to? 5. Issue No. 1 : — The plea of forgery is put forth by the defendant. The initial burden on the plaintiff is to establish that the testatrix has signed the Will and thereafter the burden shifted on the defendant to prove that the document is forged one. It is the specific case of the plaintiff that Kuppulakshmi Ammal died on 17.5.83 and the Will was executed by his mother as well as father on 11.3.66, which are marked as Ex.P2 and P3. Ex.P2 and P3 have been executed by the mother and father respectively and attested by C.S. Narayanasamy and T.N. Kasturirangan. Both the Wills are dated 11.3.66. Both the Wills are in the same terms except the name of the testatrix and the testator. Ex.P2 alone is extracted below: It reads as follows: “1. Dutchanamoorthy Kuppulakshmi Ammal, wife of Sri K. Dutchanamoorhy Mudaliar, residing at No. 7, Telegraph Abboy Naidu Street, Madras -1, declare this to be my last Will and Testament which I make this eleventh day of March 1966, hereby renouncing all other Wills and codicils heretofore and made by me. “I hereby bequeathe and desire all my movable and immovable property whatsoever and wheresoever to my only son D. Amirthalingam absolutely and appoint him sole executor of mis my Will. In the event of my son the said D. Amirthalingam predeceasing me, all my properties both immovable and movable will devolve absolutely on my death on my daughter-in-law. A. Leela, Wife of D. Amirthalingam. I have signed this Will hereunder on the eleventh day of March One Thousand and nine hundred and sixty six”. 6. In the written statement, the case of the defendant is that the mother has not left any Will and the mother is suffering from mental disorder and she was not possessed of normal mental capacity and the Will is false, forged and prepared by the plaintiff for making unlawful gain, taking advantage of Kuppulakshmi Animals unsound mind. In the evidence, the case of the defendant is slightly different. In the evidence, the case of the defendant is slightly different. The specific suggestion to P.W.1 in the cross-examination is that the plaintiff being the sole beneficiary, he prevailed upon his mother and after consultation with her, he obtained her signature on a piece of paper. The suggestion was denied by P.W.1 The further suggestions proceed on the basis that the testatrix has signed the Will without knowing the contents of the same. The defendant as D.W.I in her chief-examination has admitted that her mother used to sign in English. The further evidence of the defendant in the chief examination is that she issued a notice on the second day of the death of her mother, claiming partition. With regard to the signature in Ex.P2, and P3, she admits that it is the signature of her mother and father. But at the same time, she says that she is not certain about it or she cannot say so with certainty. The mother has signed the Will without understanding the contents and only at the request of the plaintiff. The mother is not in sound and disposing state of mind. In the cross-examination, she says that she cannot identify the signatures in the document shown to her. The documents shown to her give the date as 11.3.66 She met Narayanasamy in or about 1990 and Narayanasamy did not tell her as to when he signed the blank papers in the office. If the pleadings and the evidence is taken into consideration, the defendant has given two different versions i.e., in the written statement her case is that the Will is forged one and the plaintiff had prepared the Will and in the evidence she has admitted the signature of her mother in the disputed Will and she says that the mother has signed the Will, without knowing the contents and at a time when she was mentally not alright. With regard to her mental condition, I would deal the same in the next issue. So far as the forgery plea is concerned, the defendant has stated that blank papers signed by one C.S. Narayanasamy has been utilised for preparation of the Will. In the cross-examination she has also admitted that the said Narayanasamy did not tell her as to when the blank signed papers were obtained. So far as the forgery plea is concerned, the defendant has stated that blank papers signed by one C.S. Narayanasamy has been utilised for preparation of the Will. In the cross-examination she has also admitted that the said Narayanasamy did not tell her as to when the blank signed papers were obtained. Even if the plea of the defendant, stated in the written statement is taken as if true, her case is that Narayanasamy has given the signed papers in 1970-1972, which was signed by Kuppulakshmi Ammal whereas the Will is dated 11.3.66 and hence the blank papers obtained by Narayanasamy could not have been used for obtaining the Will. In the evidence she has not stated anything about the forged nature of the Will. Her plea is that the plaintiff had obtained the signature in the Will and the mother has signed the Will without knowing the contents. If that be so, either there should be a plea in the written statement that the plaintiff had obtained the signature from the testatrix by coercion or fraud. There is no such plea. But the only contention is that the testator was not in a mentally sound condition. 7. The next argument advanced by the counsel for the defendant is that in the evidence, the plaintiff had admitted that the Will was prepared by the father and the plaintiff was also aware of the contents of the Will earlier and thereafter the signature was obtained from the testatrix. From this admission, it has to be inferred that the mother has signed the Will just to obey either her husband or her son, the plaintiff without knowing the contents of the Will. As already pointed out, that is not the case of the defendant in her written statement. Moreover, in the cross-examination, the plaintiff has admitted that the contents of the Will were read by the testatrix and only after reading the contents, she signed the document. It is not the case of the defendant that before ever the Will was prepared by her father, the mother was not consulted perhaps the father and mother might have discussed the issue and ultimately decided to execute the Will in favour of the plaintiff and but for that there is no need for both the father and mother to execute the Will on the same date. It is the admitted case that from 1981 the relationship between the plaintiff and defendant is strained and the father died on 2.2.70. The defendant could have filed the suit, claiming partition immediately thereafter. But she did not do it. On the second day of the death of the mother, she issued the notice but even thereafter she waited for four years for filing the suit for partition. 8. P.W.2 was one of the attesting witness to Ex.P2, has categorically stated that he saw Kuppulakshmi Ammal signing the document and Kuppulakshmi Ammal also saw the witness signing the document. He also said that Narayanasamy has attested the Will and Kuppulakshmi Ammal was hale and healthy at the time of execution of the Will. In the cross-examination, nothing has been elicited to disbelieve the evidence except that he is a good friend of the plaintiff. Merely because P.W.2 is a good friend of the plaintiff that Will not be a ground to reject his evidence. The witness further stated that the plaintiffs mother signed the Will only after the plaintiffs father read over the Will and explained the contents to her. He also said that he has seen the testatrix reading English. On consideration of the above evidence and taking into consideration the totally different plea put forth by the defendant in the pleadings and in the evidence, I am of the view that the defendant has not established her case that the Will is forged one. Hence I answer the issue against the defendant. I find support for my above view in a judgment reported in Vaijayanthimala Bali v. Rattan Chaman Bali (1990 1 L.W. 27) wherein my learned brother Srinivasan, J. has elaborately dealt with this aspect. The learned Judge referred to the earlier Supreme Court judgment and extracted the same as follows: “The principles which govern the proving of a Will are well settled and the Supreme Court has in more than one case laid down the same in unmistakable terms. (See H. Venkatachala Iyengar v. B.N. Thimmajamma ) ( AIR 1959 SC 443 ) Rani Purnima Devi v. V. Khagendra Narayan Dev ( AIR 1962 SC 567 ) and Shashi Kumar v. Subodh Kumar ( AIR 1964 SC 569 ). (See H. Venkatachala Iyengar v. B.N. Thimmajamma ) ( AIR 1959 SC 443 ) Rani Purnima Devi v. V. Khagendra Narayan Dev ( AIR 1962 SC 567 ) and Shashi Kumar v. Subodh Kumar ( AIR 1964 SC 569 ). The following passage found in the last of the judgments referred to above is useful and instructive: “..The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of the Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of the testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however, ther e are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the Will to show that the testators mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document in accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him , that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him , that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relation” The very same passage is found in a later judgment of the Supreme Court in Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another ( AIR 1982 SC 133 = 95 L.W. 146 S.N.). As already stated, it is the propounders duty to discharge the burden of valid execution and thereafter the burden is on the defendant to prove their case. One other judgment reported in M.S. Thanigachala v. Rukmani Ammal (AIR 1989 Madras 99 = 1988 1 L.W. 425) wherein Ratnam, J. has dealt with the aspect of Section 63(c) of the Succession Act. It reads as follows: “Thus, the only question that has to be considered is whether the Will Ex.A6 dated 15.4.1968 has been proved to have been executed by Pattammal and attested in accordance with the law. In this connection, it is necessary to refer to Section 63(c) of the Succession Act, which runs as under — “63 (c). The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen someother person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presencce of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular from of attestation shall be necessary.” A reference at this stage may be made to Section 68 of the Evidence Act 1872 (hereinafter referred to as the Evidence Act (for short), which provides that: — “68. If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence”. There is a Provisio to this Section, which is not very material for purposes of this case, Thus, while under Section 63(c) of the Succession Act, the Will should be attested by two or more witnesses, each of whom had either seen the testator sign or affix his mark, or had received from the testator a personal acknowledgement of his signature or mark on the will, it is not necessary that the testator and the two witnesses should all be present at one and the same time. However, it is clear that there must be two witnesses, who have attested the execution and to each of them the testator either should have given his personal acknowledgement of his signature or mark, or both of them should have been present at the time when the testator executed the document. Section 68 of the Evidence Act lays down the mode of proof of a Will by calling at least one witness, but it does not set out or purport to define what is required to be proved. That however has been laid down in Section 63(c) of the Succession Act. Even if one witness, who is called, is able to depose to all that is required by Section 63(c) of the Succession Act, for the valid execution of a Will, that would suffice for Section 68 of the Evidence Act, Section 68 of the Evidence Act does not in any manner change or alter the requirements to be proved by Section 63(c) of the Succession Act. A reading of Section 63(c) of the Succession Act with Section 68 of the Evidence Act, establishes that a person propounding a Will has to prove that the Will was duly and validly executed and that should be done by not merely establishing that the signature on the Will was that of the testator, but also that the attestations were made in the manner contemplated by Clause (c) of Section 63 of the Succession Act. It is true that it is not necessary under Section 68 of the Evidence Act, to examine both or all the attesting witnesses. However, it does not follow that if one attestor proves that the testator had acknowledged his signature to him, it is not necessary that the acknowledgement by the testator before the other attesting witness need be proved. In cases where two attesting witnesses had signed in the presence of each other, it is not necessary to examine both to prove that they had received the acknowledgment from the testator, but if the attestations are not made at the same time, it is necessary to prove that the attestors had signed so on the acknowledgement of the testator:. On the facts of the case, the learned Judge found that one of the attestators has clearly given evidence with regard to his presence during the execution of the Will by the testatrix and about the attestation of the other witness also and this would suffice the requirement of Section 63)c) of the Succession Act. 9. One other contention raised by the learned counsel for the” defendant is that the beneficiary had actively participated in the preparation of the Will and hence the plaintiff, who is the beneficiary, has to remove the suspicious circumstance, that he played the main role in getting the Will executed. The Supreme Court had held in Malkani v. Jamadar ( 1987 1 SCC 610 ) that the active participation of the beneficiary by itself does not create a doubt regarding the testamentary capacity of the executor or the genuineness of the Will. If it is alleged that the Will has been executed by the testatrix by coercion, it is incumbent on the party who pleads coercion, and undue influence to prove the same. In this case, P.W.1 do not say that he played a leading role in the preparation of the Will. If it is alleged that the Will has been executed by the testatrix by coercion, it is incumbent on the party who pleads coercion, and undue influence to prove the same. In this case, P.W.1 do not say that he played a leading role in the preparation of the Will. He has admitted that the Will was prepared by his father and the same was read over to his mother, the testatrix, in the presence of the attesting witnesses and after the testatrix was convinced about the recital, she signed the document Merely on the ground that P.W.1 admits that he knows about the preparation of the Will earlier to the execution by the testatrix may not be sufficient to establish that P.W.1 has played a leading role in the preparation of the Will, he being the beneficiary. In another judgment reported in Indu Bala Bose v. Manindra Chandra Bose ( 1982 1 SCC 20 = 95 L.W. 146 S.N.) the Supreme Court has held that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account. If the propounder succeeds in removing the suspicious circumstances, the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. From the above discussion, it is clear that the defendant has failed to establish this plea also. 10. Issue No. 2 : — The defendants plea in the written statement is that Kuppulakshmi Ammal, the defendants mother was suffering from mental disorder and had been going through frequent depression attacks. Kuppulakshmi Ammal was not possessed of normal mental capacity. Taking advantage of Kuppulakshmi Ammals unsound mind, the plaintiff has prepared the alleged Will. 10. Issue No. 2 : — The defendants plea in the written statement is that Kuppulakshmi Ammal, the defendants mother was suffering from mental disorder and had been going through frequent depression attacks. Kuppulakshmi Ammal was not possessed of normal mental capacity. Taking advantage of Kuppulakshmi Ammals unsound mind, the plaintiff has prepared the alleged Will. In support of her case, she has taken out subpoena to the Institute of Mental Health, Madras 10- and produced the medical history sheet with regard to h er mother and the same was marked as (sic) Ex..D.W.2 (sic)., had been examined to prove that Ex.2 P.1 (sic) is the true copy of the history sheet that was maintained by the hospital. However, the doctor has admitted that she has no personal knowledge about the nature of the treatment given to the said Kuppulaksmi Ammal, as she joined in the hospital in the year 1980. Ex.D1 reveals that the said Kuppulakshmi Ammal was admitted in the hospital on 19.12.1983 at 5.10. p.m. by her sister-in-law. She was discharged on 8.1.1959. The history sheet reveals that the said Kuppulakshmi Ammal was overjoyed and exhibited mental excitement about eight years back. So far as the present illness is concerned, the complaint is she was very noisy, boisterous, scolding everybody, sleepless at nights, aggressive at times, visual hallucinations, imagines that some one has done black magic on her. During her stay in the hospital, she had been maintaining good health and her history sheet does not show any mental disorder. Bu t, however, the report reveals that on the day of discharge “Patients general health is fair. Mentally she has improved considerably. She is discharged as improved”. Though the counsel for the plaintiff objects that the certificate cannot be taken into consideration, as no one who made the entry in the history sheet has been examined, I am of the view that as the history sheet of the patient has been maintained by the hospital authorities in their routine business, the same can be taken into considerat ion. Coming to the evidence on this aspect, except the respondents evidence, there is no other evidence available on record. She has not chosen to examine any other relations or the doctors under whom her mother underwent treatment. Coming to the evidence on this aspect, except the respondents evidence, there is no other evidence available on record. She has not chosen to examine any other relations or the doctors under whom her mother underwent treatment. In her evidence, she has stated “my mother was examined by my fathers family doctor, who told that she was mentally affected and so she had to be admitted in the Kilpauk hospital for treatment. In the year 1959 my father and myself took my mother to the Kilpauk hospital. My mother was in the hospital for ten days. Now says that my mother was admitted in 1958 and she was discharged from the hospital by last week of December, 1958. The plaintiff was married in January, 1959. I do not remember the exact date. At that time my mother was mentally affected and could not understand what was happening around her. She used to talk to herself, had an empty look, could not take food, could not sleep”. Ex.D1 was marked through D.W.2 which is the medical history sheet of her mother. It clearly reveals that the mother was admitted on 19.12.58 by her sister-in-law an d she was discharged on 8.1.59. The history sheet also reveals that the nature of disease from which the testatrix was suffering is Schizophrenia. In the cross-examination, she was admitted that her son was looked after by her mother during 1953 to 1966. She also admits that her mother has not been admitted in the mental hospital at any time prior to 19.12.58 or after 8.1.59. She also admits that Ex.P5 letter written by her husband was addressed to her mother which is dated 1.7.75. She also admits that in the letter, her husband had enquired about their second son Nana as he was staying with her mother during that time. 11. Though the general plea was raised that the testatrix was not mentally sound and that has been taken advantage of by the plaintiff to prepare the Will under dispute, it is admitted in the evidence that except for a short spell of December, 1958, at no other point of time, the mother was admitted in the hospital for her treatment for the said disease of Schizophrenia. Even in her evidence, D.W.1 do not say that her mother was of unsound mind at relevant time of execution of Will. Even in her evidence, D.W.1 do not say that her mother was of unsound mind at relevant time of execution of Will. The mere plea that her mother was of unsound mind may not be sufficient to draw an inference that her mother was of unsound mind at the relevant point of execution of the Will. The respondent has not discharged her burden, which lies heavily on her, to establish the fact that her mother was of unsound mind. The Will has been executed after seven years after her discharge from the hospital and during this period of seven years, there is absolutely no evidence to show that the mother was suffering from any mental disorder and she underwent any treatment in any hospital. 12. Coming to the judgments, in the case of Rangaswami Raja v. Venkata Raja (ILR 1965 (1) Madras 722 = 78 L.W. 301) the principles have been laid down as follows: “The true position is that where circumstances of suspicion or grave suspicion exist they determine the perspective approach of the court to the central issue. The evidence might either prove the execution of the testament as that of a free and capable testator and thus dispel those suspicions or leave them undispelled, even darkened further. In the latter case the Court will certainly decline probate. But where the court is satisfied from the evidence that the Will was validly executed by a testator wi th capacity, the suspicious are dispelled by the very force of that conclusion. In such a case suspicion is then reduced to a perversity in the mind of the testator upon which the court will not judge. For the court does not make a Will and apart from the question of the execution of the will by a free testator with capacity the court is not concerned with the wisdom and righteousness of the dispositions. The circumstances which excite the suspicions of the court must be relevant to the preparation and execution of the Will in some form and cannot merely suspicious concerning the veracity of witnesses. Testamentary capacity is not a special faculty given only to few or to most persons only when in an exceptional state of dearness of thought and memory. The circumstances which excite the suspicions of the court must be relevant to the preparation and execution of the Will in some form and cannot merely suspicious concerning the veracity of witnesses. Testamentary capacity is not a special faculty given only to few or to most persons only when in an exceptional state of dearness of thought and memory. It is the normal state of selfrecollectedness of a same person who is in good health and whose powers of judgment and memory have not been pathologically affected”. A Full Bench of our High Court reported in Mini v. James Koshy Alexander (1994 II MLJ. 487 = 1996 1 LW. 226) when dealing with matrimonial matter, had occasion to consider the nature of the disease schizophemia and found that there should be evidence to establish that the party was suffering from schizophrenia not only at the time of marriage and continues to suffer from the same mental illness in order to get divorce. The Full Bench has taken into consideration the provisions in the Indian Lunacy Act, 1912 and Mental Health Act, 1987 and has held as follows: “But this Court cannot ignore its duty to find out whether the first respondent was a lunatic or idiot at the time of marriage as required by Section 19(3) of the Indian Divorce Act. In Stedmans Medical Dictionary, 24th Edition at Page S12, it is stated that the term ‘lunatic’ is an obsolete term for a mentally ill person. The term ‘lunancy’ is defined as follows: “(Luna, Moon) 1. Formerly a form of insanity characterized by alternating lucid and insane periods, believed to be influenced by phases of the moon. 2. Any form of insanity 3. Insanity as defined variously by law. In P. Ramanatha Aiyars Law Lexicon, Reprint Edition 1993, we find the following statement as against the term lunacy at page 758: “Imbecility of mind, a weakness of mind between the limits of absolute idiocy on the one hand and of perfect capacity on this other. 2. Any form of insanity 3. Insanity as defined variously by law. In P. Ramanatha Aiyars Law Lexicon, Reprint Edition 1993, we find the following statement as against the term lunacy at page 758: “Imbecility of mind, a weakness of mind between the limits of absolute idiocy on the one hand and of perfect capacity on this other. ( Ingram v. Wyatt 1828) 1 Hag.E.R. at p. 401) With reference to the term Lunatic, it is stated as follows: “A lucid interval is not necessity a complete restoration to mental vigour previously enjoyed ( Exparte, Holyland , (1805) II Ves 10:8 R.R.67 67 per Lord Eldon L.C), nor is it merely the cessation or suppression of the symptoms of insanity (per Sir John Dodson in Dyce Sombre v. Prinsep (1856 (I Dearne at P.110) “Lunatic defined (see also Criminal Lunatic: Person of unsound mind) Act 34 of 1858, Sec. 18 Act 27 of 1866, Sec. 2 Act 14 of 1912 Sec. 3” “Lunatic, in 8 and 9 vict.c.100, Sec. 44 included “every person whose mind is so affected by disease that it is necessary for his own good to put him under restraint:” R. Bishop (1880) Q.B.D. 259,. This section is now embodied in Sec. 315 of the Lunacy Act, 1890 (53 and 54 Vct C.5)”. This is a case dealing with Section 19(3) of the Indian Divorce Act. In another case reported in Rita Roy v. Sitesh Chandra (AIR 1982 Calcutta 138) it has been held as follows: “Each case of schizophrenia has to be considered on its own merits. Schizophrenia is an illness of slow insidious onset developing over years. There may be report of strange, odd inappropriate behaviour. There will be progressive deterioration in the level of performance at work and socially; school report, examination results and the employment record will provide objective and usually reliable indices of intellectual performances, its maintenance or decline. According to the Clause (III) of the section, two elements are necessary to get a decree of divorce. The party concerned must be unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her. So only one element of that clause is insufficient to grant a decree”. The party concerned must be unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her. So only one element of that clause is insufficient to grant a decree”. This is also a case of divorce under Section 13(i) (iii) of the Hindu Marriage Act, 1955. In Ram Narain v. Rameshwari ( AIR 1988 SC 2260 ) it has been held as follows: “Schizophrenia” it is true, is said to be difficult mental-affliction. It is said to be insidious in its onset and has hereditary predispresing factor. It is characterized by the shallowness of emotions and is marked by a detachment from reality. In paranoid-states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as insi dious traps. In its worst manifestation, this illness produces crude wrench from reality and brings about a lowering of the higher mental functions. “Schizophrenia” is described thus: “A severe mental disorder (or group of disorders) characterized by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Delusions and hallucinations (especially of voices) are usual features, and the patient usually feels that his thoughts, sensations, and actions are controlled by, or shared with, others. He becomes socially withdrawn and loses energy and initiative. The main types of schizophrenia are simple, in which increasing social withdrawal and personal ineffectiveness are the major changes; hebephrenic which starts in adolescence or young adulthood (see hebephrenia); paranoid, characterized by prominent delusion; and catatonic, with marked motor disturbances (See catatonia). Schizophrenia commonly-but not inevitably-runs a progressive course. The prognosis has been improved in recent years with drugs such as phenothiazines and by vigorous psychological and social management and rehabilitation. There are strong genetic factors in the causation, and environment stress can precipitate illness”. (See Concise Medical Dictionary at page 566: Oxford Medical Publications, 1980) But the point to note and emphasise is that the personality-disintegration that characterises this illness may be of varying degrees. Not all schzophrenics are characterised by the same intensity of the disease. There are strong genetic factors in the causation, and environment stress can precipitate illness”. (See Concise Medical Dictionary at page 566: Oxford Medical Publications, 1980) But the point to note and emphasise is that the personality-disintegration that characterises this illness may be of varying degrees. Not all schzophrenics are characterised by the same intensity of the disease. F.C. Redlich and Danial X. Freedom in “The Theory and Practice of Psychiatry” (1966 Edn.) say: “. Some schizophrenic reactions, which we call pevchoses may be relatively mild and transient: others may not interfere too seriously with many aspects of everyday living ” (P/252) “Are the characteristics remissions and relapses expressions of endegenous processes, or are they responses to psychosocial variables or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission . The term need not imply an independent endegneous process; it is just as likely that the spontaneous remission is a response to nondeliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity.” (p.465). (Emphasis supplied)”? The learned counsel for the defendant produced a passage under the head “Schizophrenic Disorders” by Dr. Stuart R. Schwartz from the book “Review of General Psychiatry” edited by Howard H. Goldman, Associated Professor of Psychiatry and Laughley Porter Psychiatric Institute, University of California, San Francisco. This passage elaborately deals with the schizophrenia disease. I do not think the entirety has to be extracted and dealt with here, I confine to the relevant portions alone. “Symptoms & Signs-Schizophernia always involves disorganization of previous level of functioning, Family and friends observe that the person has changed and is no longer the same (Shes hot herself anymore”). The individual functions poorly in significant areas of routine daily living, such as work and social relations. There is often a notable lack of concern for self-care in an individual who has previously been capable of it. As they lose their grip on reality, patients experience the following feelings; (1) Perplexity-At the onset of illness, patients report a sense of strangeness about the experience as well as confusion about where the voice are coming from and why their everyday experience is so markedly changed. (2) Isolatin-The schizophrenic person experiences an overwhelming sense of being different and separate from other people. The work of Frieda Fromm-Reichmann (1950) highlights the intense loneliness experienced by these patients. (2) Isolatin-The schizophrenic person experiences an overwhelming sense of being different and separate from other people. The work of Frieda Fromm-Reichmann (1950) highlights the intense loneliness experienced by these patients. (3) Anxiety and terror-A general sense of discomfort and anxiety often pervades the experience. It is sharpened by periods of intense terror caused by a world within that is experienced as dangerous or uncontrollable”. This would lead to disturbances in language and communication: disturbances in content of thought; disturbances in perception; hallucinations; disturbances in affect or feeling tone; disturbances in sense of self; disturbances in volition; disturbances in relationship to the external world. Disturbances in motor behaviour. Further it is stated that schizophrenic disorders are divided into five sub-types on the basis of distinctive clustering of symptoms. They are as follows: (1) Disorganised Type (2) Catatonic Type (3) Paranoid Type (4) Undifferentiated Type (5) Residual Type In the concluding portion, it has been summarised as follows: “Schizophrenic disorders comprise a complex syndromb characterized by a disturbance in reality testing, marked impairment of social functioning, and severe personality disorganisation involving disturbances in thought, affect and behaviour. There is no known cause, although genetic factors clearly play a significant role. Phsychosocial factors play an important part in development of schizophrenic disorders, and there may also be biochemical bases for these illnesses. Treatment should consist of various methods and should include the formation of a therapeutic alliance with the schizophrenic person as well as with friends and family. Although schizophrenia is one of the most serious psychiatric disturbances, a comprehensive approach to the care and treatment of schizophrenic disorders can improve the quality of life of patients and their families”. 13. Coming to the burden of proof, it has been held in Ganpatrao v. Vasantrao (ILR 34 Bombay 1871) as follows: “Generally, the law presumes sanity in the testator, and where the Will is not challenged, it is enough for, the purpose of establishing the Will that it was duly executed by the testator, that he was not a minor, and was otherwise capable of making a Will under the law by which he was governed. Where the testators sanity is disputed, the burden of proof lies upon the person propounding the Will to prove affirmatively that the testator was of sound mind at the date of its execution, and that he knew, understood, and approved of its contents”. Where the testators sanity is disputed, the burden of proof lies upon the person propounding the Will to prove affirmatively that the testator was of sound mind at the date of its execution, and that he knew, understood, and approved of its contents”. The same principle has been followed in Biieswar Kumar v. Nirupama Debi (AIR 1973 Calcutta 460). It reads as follows: “From the above observations, the learned District Judge thought that it was not held in these proceedings that Rajeswari was either insane or sane, but we think the unsoundness of mid or mental infirmities of the testatrix cannot be ruled out altogether. At any rate, there exist reasonable grounds for disputing the sanity of the testatrix and in that event the burden of proof would lie on the person propounding the Will to prove affirmatively that the testator was of sound mind at the date of execution and further that he knew and approved the contents thereof. If on the other hand, the dispute as to the sanity of the testatrix is not well founded the burden of proving such insanity at the date of execution of the Will is shifted to the person impeaching the Will. (See 19 Cal. WN.826) - (AIR 1915 Cal 225 (2), Sushil Kumar v. Apsari and 34 Bom. LR.1371 (AIR 1932 Bom 588), Ganpat Rao v. Basant Rao. ). The learned District Judge though thought in view of his finding on the question of the due execution and attestation of the Will that no further consideration was necessary with regard to the mental soundness of the testatrix, decided however, the issue No. 2 against the propounder. We entirely agree with the learned District Judge for here admittedly the testatrix was illiterate and extremely old and the Doctors who treated her during her illness before her death were also not examined and her daughter Susama who was mostly staying with her also did not give evidence as rightly pointed out by the learned District Judge. In the facts and circumstances of this case, it was clearly incumbent upon the present appellant, to prove that at the time of execution of the Will she was in sound mental health and thus knew, understood and approved the contents of the Will. In the facts and circumstances of this case, it was clearly incumbent upon the present appellant, to prove that at the time of execution of the Will she was in sound mental health and thus knew, understood and approved the contents of the Will. In our opinion, the appellant also failed in this case to discharge the burden and satisfy the conscience of the court by proving that the testatrix had a sound disposing mind and she knew, understood and approved the contents at the time of the execution of the Will”. 14. It is clear from the above well laid principles that the disease schizophrenia is of different types. Some are severe, some are occurring in lucid intervals and some are minor type. In such circumstances, it is for the defendant to establish what is the nature of the disease the testatrix was suffering. Merely on the basis of Ex.D1 it cannot be inferred that the testatrix was suffering from any severe schizophrenia, whereby she lost her mental capacity. In fact the history sheet clearly shows that she was able to understand things and after medical treatment she also improved. After her discharge from the hospital on 8.1.59 there is absolutely no evidence on the part of the defendant to show that again the testatrix had any attack of schizophrenia or she underwent any treatment for her otherwise mental disorders. As it has been clearly laid down by well laid principles by the reported judgments, when once the mental incapacity is pleaded, the burden is on the propounder to remove such doubt and thereafter the burden shifts on the person who impeaches the Will to establish that the testatrix was of unsound mind during the relevant period of the execution of the Will. As already pointed out, there is absolutely lack of evidence to prove that during the relevant period of execution of the Will, the testatrix was of unsound mind. The defendant herself has admitted that till 1981 her relationship with the plaintiff was very cordial and only in early 1981 misunderstanding arose because of plaintiffs daughters marriage. If that be so, naturally the defendant should be aware in case the testatrix was suffering by the disease of schizophrenia and she underwent treatment subsequent to January, 1959, the date of discharge from the hospital and till 1966 when the Will was executed. If that be so, naturally the defendant should be aware in case the testatrix was suffering by the disease of schizophrenia and she underwent treatment subsequent to January, 1959, the date of discharge from the hospital and till 1966 when the Will was executed. The defendant did not even whisper about any ailment of her mother, subsequent to her discharge from the hospital in January, 1959. 15. One other circumstance, which was relied upon by the plaintiffs counsel is Ex.P5 letter written by the respondents husband from Penang, Malaysia. Though in this letter the address has been given as Amirthalingam (plaintiff herein), the contents of the letter commence as (Tamil) He had made a special request to the testatrix to visit Purasawalkam and take care of the children. (Tamil) The other contents of the letter also deals with several aspects, giving the details with regard to the relations visit and his life at Penang. If really the testatrix is of unsound mind, as pleaded by the defendant, her husband could not have written a letter like this. This is only circumstance, which is against the defendant. Adding with this, the absence of total evidence on the part of the defendant to show that the testatrix was of unsound mind during the relevant period of execution of the Will, the plea of the defendant that the testatrix was of unsound mind and the plaintiff had taken advantage of the same and got the Will prepared, has to be rejected. The second issue is also found against the defendant. 16. In the result, the T.O.S. is decreed as prayed for.