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2002 DIGILAW 115 (KAR)

M. Narasimhachar v. M. Raghavendrachar

2002-02-08

B.K.SANGALAD

body2002
JUDGMENT B.K. Sangalad, J.--The Appellants have preferred this appeal against the judgment and Decree passed by the Additional District Judge, Shimoga in O.S.No. 2 of 1989 on 9.9.1991 dismissing the suit of the Plaintiffs (Appellants). 2. The ranks of the parties shall be followed as in the Lower Court. 3. The facts of the case in nut-shell are as follows: This suit of the Plaintiffs is for grant of Probate of Registered Will dated 8.8.1966 executed by Maddi Madhavachar bequeathing the schedule properties mentioned in the plaint by the Plaintiffs. An application under Section 276 of the Indian Succession Act, 1925 was made by the Plaintiffs for grant of probate of the Will dated 8.8.1966 of Madhavachar. Since it was contested the application was converted into the suit. 4. There was one Srinivasachar who had two sons by name Venkobachar and Shanthachar. Venkobachar had two sons by name Madhavachar and Raghavendrachar (Defendant). Shanthachar had six sons namely plaintiffs 1 to 6. Madhavachar son of Venkobachar has executed the Will bequeathing the properties in favour of the Plaintiffs. Exhibit P10 is the Will which was executed on 8.8.1966. The Will was registered on 11.8.1966. The said Madhavachar died on 14.12.1983 at Anavatti. The schedule properties were acquired by the deceased Madhavachar in the family partition among the brothers and also in the Court Decree passed in O.S. No. 50 of 1961 on the file of the Civil Judge, Shimoga. The said Madhavachar was unmarried and as such he had no heirs to succeed to his estate. He was under the shelter of his uncle and sons - Plaintiffs 1 to 6. Madhavachar had absolute right, title and interest to execute the Will dated 8.8.1966. It was the last Will of Madhavachar in respect of the schedule properties. The deceased Madhavachar was a permanent resident of Anavatti, Soraba Taluk and all the properties bequeathed under the Will are situated in Shimoga District and the said Madhavachar died at Anavatti on 14.12.1983. Hence the Plaintiff have prayed for grant of probate of the Will dated 8.8.1966. 5. This application was opposed by the Defendant contending that the petition was not maintainable. The Plaintiffs knew that Raghavendrachar was the brother of the deceased and in an application for issue of Probate, Raghavendrachar was not shown as Respondent. It is Raghavendrachar who was the rightful owner to succeed to the estate of the deceased. 5. This application was opposed by the Defendant contending that the petition was not maintainable. The Plaintiffs knew that Raghavendrachar was the brother of the deceased and in an application for issue of Probate, Raghavendrachar was not shown as Respondent. It is Raghavendrachar who was the rightful owner to succeed to the estate of the deceased. He was not made as party in the application only with an intention to knock out the properties of the deceased. The said Raghavendrachar had admitted that Madhavachar died on 14.12.1983. But he has denied the execution of the Will dated 8.8.1966. Raghavendrachar has contended that deceased Madhavachar had not executed any Will and was not capable of executing any Will also. He was not in a position to manage his estate at any point of time as he was mentally not sound and incapable of taking any decision or looking after his affairs. Several documents from time to time came into existence to show that Madhavachar was not in position to execute any document muchless the Will. It is admitted with regard to the partition as mentioned in the plaint. From the very beginning, Shanthachar, uncle of Madhavachar had enmity against the defendant - M. Raghavendrachar. Therefore, according to the Defendant the brain behind the execution of the Will was Shanthachar and also it is not a genuine Will. Madhavachar was unmarried as he was incapable of marrying also. He was removed from the custody of the Defendant and almost kept in confinement by Shanthachar and his sons. Therefore, he could not; have executed the Will at all. He has also taken up the contention that Madhavachar was not in sound disposing state of mind at the time of the executing the Will. The Plaintiffs cannot be the legatees under the Will. The Petition as such is not maintainable. Under the Partition Deed dated 3.11.1955, only limited interest is given to Madhavachar and as such any document coming into existence contrary to such limited interest is not maintainable. It is also contended that the decree passed in O.S. No. 50 of 1961 had become defunct for want of execution of the decree. No title can be claimed by the Testator under the Decree in O.S. No. 50 of 1961. In addition to this, it is also stated that the statement of Madhavachar before the Special Deputy Commissioner for inams in Mis. No title can be claimed by the Testator under the Decree in O.S. No. 50 of 1961. In addition to this, it is also stated that the statement of Madhavachar before the Special Deputy Commissioner for inams in Mis. 34 of 1959-60 makes it clear that the entire present proceedings are not maintainable. The schedule mentioned in the plaint is also very strange one. It is further contended that the Defendant himself is in possession of the properties for over 20 years and further has denied the other averments and prayed for dismissal of the suit. 7 In view of these contentions, the learned Additional District Judge, has framed the following issues: 1.Whether the Plaintiffs prove the execution of the Will dated 8.8.1966 in their favour by the deceased Maddi Madhavachar? 2.If so, whether the Plaintiffs prove that the testator was in sound and disposing state of mind at the time of executing the Will? 3.What order or Decree? 8. The learned Additional District Judge has taken the issues 1 and 2 together and has held that the Plaintiffs have failed to establish that the Will was executed as alleged by them. As such, he has dismissed the suit. 9. Being aggrieved by this, the present appeal arises. 10. In this case, four witnesses are examined namely PW1 - Keshavachar, PW2-Lakshmikanthappa, PW3-G.L. Kulkarni and PW4 - Ningappa Wodeyar for the Plaintiffs and Exs. P1 to P12 are marked and for the Defendant, himself is examined and Exs. D1 to D4 are marked. 11. Now it is to be seen whether the findings of the Lower Court are sustainable or not? 12. At the very out set it has to be stated that the learned Additional District Judge has not approached the case in proper perspective for the reasons best known. He has tried to make out a distinction which appears to be unnatural. He ventures to say that sound disposing state of mind is quite different from soundness of mind. He makes this observations against the observation of this Court in one of the proceedings that said Madhavachar was not so. The learned District Judge cannot make an observation that unsoundness of the mind has not been upheld by this Court. This appears to be very strange. He makes this observations against the observation of this Court in one of the proceedings that said Madhavachar was not so. The learned District Judge cannot make an observation that unsoundness of the mind has not been upheld by this Court. This appears to be very strange. Once this Court has remarked that a certain person was in sound disposing state of mind, it does not lie in the mouth of the Trial Court to say that this Court has not upheld that the deceased was suffering from unsoundness of mind. This will be discussed later. 13. To prove the Will clearly it is required that the Executor was knowing what he was doing ofcourse he must enjoy the sound mind. This does not mean that the person should be extraordinarily intelligent or brilliant. It is enough if he could understand that what he was doing and what property he was giving to the Plaintiffs by the Will. Some times the executor may be illiterate but might be only capable of putting his signature. When the contents of the Will are read over and if they are understood by the Executor, I think the other party is harping upon the misventure that the Will was not duly executed as he was illiterate. Sometimes there are bound to be variations in the evidence. This depends upon after how many years the witnesses are examined. In the present case, the Will was executed on 8.8.1966 and the same was registered within a short span. The Executor died after almost 17 years. In this case, Madhavachar died on 14.12.1983, 17 years 4 months after execution of the Will, the Testator died. Before the death, no proceedings can be taken. After the death of said Madhavachar, these proceedings have been initiated. The first witness is examined on 15.3.1990.P Ws 2 and 3 were examined on 7.3.1991. So practically these witnesses are speaking regarding the execution of the Will after about 18 years. Therefore, there are bound to be some variations in the evidence as the witnesses are speaking after the lapse of long long period. Moreover, it is too much to expect to prove the Will graphically and microscopically. In my opinion it is impossible to prove the Will with mathematical certainty. The facts from one case to another vary. Therefore, there are bound to be some variations in the evidence as the witnesses are speaking after the lapse of long long period. Moreover, it is too much to expect to prove the Will graphically and microscopically. In my opinion it is impossible to prove the Will with mathematical certainty. The facts from one case to another vary. It has to be seen the facts and circumstances together which lead to the execution of the Will. In this case, the Will has been registered. The Trial Court has unnecessarily harped upon the misventure to pick up one word here and one word there and tried to import its own ideologies. The contentions of the Defendant mainly are that the deceased was not in sound state of mind. 14. Mr. Tilgul, learned Counsel for the Appellants submitted that after 17 years after the execution of the Will, till said Madhavachar died, there was no proceedings to cancel the Will at any point of time. The Defendant did not speak against the Will, as such, the Defendant cannot take up the contention that the Will was not genuine and it was executed under the threat. According to him, the Will was duly registered. The said Madhavachar was residing with late Shanthachar. Since there was rivalry, the Defendant is making false allegations stating that the Will is not genuine. On the other hand Mr. Dixit the learned Counsel for the Respondent strenuously submitted that in a different proceedings, it is stated that Madhavachar was not having worldly wise knowledge. He was illiterate. He was dullwitted and he was suffering from insanity of mind. In view of these rival contentions, the evidence of P Ws 1 to 4, and DW1 has to be examined. At the very out set, it has to be stated that the Respondent is making hectic efforts to set the execution of the Will at naught. He admits that he initiated the number of proceedings but he has lost in all. At one breath he says that the deceased Madhavachar was suffering from fits. It is also on the record that till 1960 the said Madhavachar was with Raghavendrachar. If his brother was really suffering from fits, why did he not take him for medical care? He relies much on the Partition Deed Ex.D1 wherein only limited interest is given in favour of Madhavachar. It is also on the record that till 1960 the said Madhavachar was with Raghavendrachar. If his brother was really suffering from fits, why did he not take him for medical care? He relies much on the Partition Deed Ex.D1 wherein only limited interest is given in favour of Madhavachar. He also says that he was looking after the property of Madhavachar. When he was not in the village, late Shanthachar, took him away from his house. If forcibly he was taken, then why should Respondent keep quiet without taking action. It is also elicited in his cross examination that he is a practicing Advocate. If that is the case, then no brother would keep quite when a person of unsound mind was taken away from his house. He makes allegation against Shanthachar stating that he was not allowed to meet Madhavachar. This is also unbelievable. Further he states that Shanthachar got filed two suits against him through Madhavachar and Shanthachar was attending the Court in those suits on behalf of Madhavachar. It is also stated that he has taken GPA from Madhavachar. If really the deceased Madhavachar was not enjoying the sound mind, how could the Respondent get the General Power of Attorney executed in his favour. In my opinion, the Respondent is blowing hot and cold at the same time. He specifically states that there was enmity between himself and Shanthachar. The motive is double edged weapon. Because of this, the Respondent in order to give pin pricks, might have taken up this contention. It is also on the record that he only received the compensation in respect of the tenanted lands and further states that Madhavachar has not received any compensation amount. If he was taking care of his brother, he could have initiated the proceedings for compensation on behalf of Madhavachar. He has not done so. He says that Madhavachar was illiterate and he was able to sign but not legibly. He has taken up the fancy defence. It is in the evidence of Respondent himself that since there is enmity between himself and PW3, according to him, all these persons together conspired to get the Will executed. The Respondent clearly states that there is enmity between himself and PW3 right from 1968. It is stated that "From 1968 there is enmity between myself and witness Kulkarni. It is in the evidence of Respondent himself that since there is enmity between himself and PW3, according to him, all these persons together conspired to get the Will executed. The Respondent clearly states that there is enmity between himself and PW3 right from 1968. It is stated that "From 1968 there is enmity between myself and witness Kulkarni. Kulkarni took away my sister's married daughter, eloped and obtained divorce from her and his cousin married her". Further he states that he has no documents to prove these allegations. Even he states that he does not know whether this witness was examined as witness in the divorce case. He has admitted that he has filed a case against Mudiputtappa before the Tahsildar, Sorab for recovery of rent and further he states that he does not remember whether he filed the case as General Power of Attorney holder of Madhavachar. But he has stated that "It is true that case was filed after Shanthachar took away Madhavachar from my house. My application before the Tahsildar might have been dismissed". 15. He has denied the suggestion that Madhavachar himself was managing the affairs of the family. He also denied another suggestion that he got the summons returned issued from this Court stating the Madhavachar is not mentally sound. He further states that "I do not know in my appeal before the High Court. Mr. B.R. Hiremath was appointed as Court Guardian to Madhavachar by the High Court, I do not know in my appeal before the Court later High Court decided Madhavachar was mentally sound and Court guardian was discharged". In view of this evidence on record, the learned Additional District Judge ought to have come to the conclusion that the deceased - Madhavachar was mentally sound. Once this Court has given its findings, it estops the learned District Judge to take up a different view. Since he has taken, it is nothing but harping upon misadventure. 16. PW-1 states that Madhavachar died at the age of 70 and he died unmarried. All along he stayed with the Plaintiffs. He further states that on 8.8.1966, Maddi Madhavachar executed a Will which is registered with Sub-Registrar, Sorab under which he bequeathed the A and B schedule property in favour of the Plaintiffs. He also states that the executor has signed Ex. P10 in the presence of the Attestors who have also signed it. All along he stayed with the Plaintiffs. He further states that on 8.8.1966, Maddi Madhavachar executed a Will which is registered with Sub-Registrar, Sorab under which he bequeathed the A and B schedule property in favour of the Plaintiffs. He also states that the executor has signed Ex. P10 in the presence of the Attestors who have also signed it. They are Nadigera N. Narasimharao, Konneri Rao, Malagund Neelakanta Rao, A.S. Laxmikanthappa, G.L. Kulkarni, Purnachar, Bhimachar was the scribe. Madhavachar presented it for registration to the Sub-Registrar at Sorab. PW4 speaks about the registration of the Will. It is in the evidence of PW4 that he met Madhavachar only in Sub-Registrar's office and asked him as to why he was there. Madhavachar told him that he executed the Will and wanted it to be registered. PW-4 read over the Will executed by him and identified him before the Sub-Registrar at the time of registration. His signature is at Ex.P 10(d). The signature of Madhavachar is at Ex.P-10(a). It is in the evidence of PW2 that Bhimachar wrote the Will. The writing was completed by about 5 p.m. He also speaks the presence of Nadiga Raghavendra, Nadiga Narasimha Rao, D. Ramrao, Malagunda Neelakanta Rao, Gundurao Kulkarni, Koneri Rao. He states that Nadiga Raghavendra made the draft of the Will. This Will was drafted according to the instructions given by Madhavachar. He states that he was in sound disposing state of mind at the time of the execution of the Will. On the previous day, Madhavachar asked him to come to the house of the Plaintiffs as he was going to execute such a Will. He has also identified the witnesses of the Testator as well as the signature of PW1. He has attested his signature at Ex.P. 10(b). About 7 or 8 days after the execution of the Will, he was told by Madhavachar that the said Will was registered. Madhavachar had also told him that there was litigation between himself and the Defendant in respect of the ancestral properties. It is in the evidence of PW3 that Purnachar Bhimachar wrote the Will. Himself Nadigar Raghavendra Rao, Koneri Rao, Narsimha Jois, Narasinga Rao were present. He also states that he remember only these are names. He specifically states that the Will was written as per the instructions of Madhavachar. It is in the evidence of PW3 that Purnachar Bhimachar wrote the Will. Himself Nadigar Raghavendra Rao, Koneri Rao, Narsimha Jois, Narasinga Rao were present. He also states that he remember only these are names. He specifically states that the Will was written as per the instructions of Madhavachar. It is in his evidence that the scribe read over the contents of the Will and Madhavachar signed it. Himself and others who were present there, also signed. It is already stated that when the witness speaks after lapse of long long time, there are bound to be some variations. There should be such admissions in the evidence led by the Plaintiffs that it should damage the case of the Plaintiffs. If there are some variations, I think that cannot be taken as the destruction of the evidence as well. In my opinion that Defendant has made much ado about nothing. 17. The observations or the contention that Madhavachar was dull and uneducated, as such he could not have executed the W Ill does not appear to be much convincing. In my opinion everyone need not be brilliant or extraordinary. Sometimes uneducated person is enjoying much more common sense than the educated persons. He can understand worldly affair in a better fashion than the others. In my opinion, this observation by the Lower Court is untenable. 18. The contention that Madhavachar was not enjoying the sound mind falls to the ground due to the fact that the Defendant had taken General Power of Attorney. This clearly goes to show that Madhavachar was capable of executing the General Power of Attorney understanding its implications in favour of the Defendant. 19. It is also pertinent to note that the Lower Court has omitted to see that in O.S. No. 50 of 1961 which had been filed by the testator Madhavachar for partition of his undivided share in his father's property, the Defendant had contended that Madhavachar was of "Unsound mind". 19. It is also pertinent to note that the Lower Court has omitted to see that in O.S. No. 50 of 1961 which had been filed by the testator Madhavachar for partition of his undivided share in his father's property, the Defendant had contended that Madhavachar was of "Unsound mind". This plea of the Defendant was negatived in the Regular Second Appeal No. 555 of 1964 wherein this Court rejected the plea with the following observations: The findings of the Courts below that the unsoundness of mind attributed to the Plaintiff is not proved, receives full support from the Defendants admission that short time before the institution of the suit he obtained from the Plaintiff a power of attorney in his favour and that he and the Plaintiff made two sales in collaboration. 20. It is elicited in the cross examination of the Respondent that O.S. No. 50 of 1961 was filed by Madhavachar for his share in his father's property. He had taken the defence in that suit that Madhavachar was of unsound mind. According to him it was held that Madhavachar was dullard and the suit was decreed. Ex. P11 is the copy of his written statement in O.S. No. 50 of 1961, Ex.P-12 is the copy of the judgment in O.S. No. 50 of 1961. He further states that he filed Regular Second Appeal No. 555 of 1964 and it was dismissed. He also admits in the cross examination that Madhavachar filed FDP No. 1/80 and during the pendency of the proceedings, Madhavachar expired. He also admits that Madhavachar filed O.S. No. 46 of 1969 against him and it was decreed and he filed appeal against the judgment in Regular Appeal No. 104 of 1972 which was dismissed. It is very interesting to note that it is admitted in the cross examination of the Respondent that he filed a suit in O.R. No. 66 of 1964 that Madhavachar could not adopt Prahaladchar and that was also dismissed. He tries to give evasive answer stating that he might have filed an appeal before this Court in No. 37 of 1966 and it was dismissed. He tries to give evasive answer stating that he might have filed an appeal before this Court in No. 37 of 1966 and it was dismissed. All these chronological events clearly go to show that the Respondent has moved from pillar to post to show that the deceased Madhavachar was of unsound mind and was not capable of understanding the wordly affairs and was not in a position to execute the Will. But all his efforts have become futile. He also admits that he had no documents to show that Madhavachar was suffering from fits. In my opinion the Respondent is trying to catch a straw on the sea when the boat in which he was travelling is sinking. It is further pertinent to note that in para 15 of the cross examination, he admits that FDP 1 of 1981 was served with suit summons which was against judgment and Decree in O.S. No. 50 of 1961 but denies the suggestion that in the year 1976, the possession of the property bearing Nos. 153, 158 and lands in Sy. No. 61/B were handed over to Madhavachar. 21. The said Madhavachar had left the house of the Respondent. This is clear from the evidence of Madhavachar in O.S. No. 50 of 1961. He has stated that "I and the Defendant are not living together. Now I am with my sister since about an year. The Defendant began to beat and ill-treat me. So I left the house". This piece of material goes to show that it was the Respondent who was ill-treating the Madhavachar and that was the cause for his coming to the house of Shanthachar. This piece of evidence further shows that it is the proper explanation as to why the deceased Madhavachar was residing with the Plaintiffs. 22. The lower Court has omitted to see all these aspects. Unnecessarily it has tried to twist the case in favour of the Respondent. Judging from any angle, I am inclined to; hold that the deceased Madhavachar was mentally sound and he was capable of knowing the consequences of executing the documents. At the cost of the repetition, it has to be stated that the deceased Madhavachar had declared his intention to execute the Will in favour of the Appellants. He was wordly wise and he was capable of knowing the consequences and he was mentally sound. At the cost of the repetition, it has to be stated that the deceased Madhavachar had declared his intention to execute the Will in favour of the Appellants. He was wordly wise and he was capable of knowing the consequences and he was mentally sound. He was enjoying the good health. He had left the Respondent's house because he was ill treated by him. The Will was executed without any coercion and undue influence. The evidence does not disclose that he was under duress and there was threat to his life. In addition to this, there is no material to show that the deceased Madhavachar was left with no option otherwise than executing the Will in favour of the Plaintiffs. The Lower Court has also made much about the statement of Madhavachar in one of the proceedings before the Special Deputy Commissioner, Shimoga in Mis 34/1958-59. It is borne on the record that before 1960, the deceased might be in agitating mind and might have made some statement and such statement in single statement cannot be made much about it. If really he was willing to stay with Respondent, after making this statement, he could have gone and have gone and stayed. Since there is long standing enmity, these allegations might have been made. The important aspect is that 17 years after the execution of the Will, the testator died but really if there was suspicious circumstances, the Respondent could not have kept quiet because he himself is a Lawyer. He knows what steps to be taken to bring back his brother. Therefore, in my opinion the findings of the Lower Court has to be set aside. 23. The learned Counsel for the Appellants relied upon the decisions cited in the Lower Court and made the comments that they are all in favour of the Appellants. Now it is to be seen the principles laid down in these decisions. In the case of Sm. Chinmoyee Saha Vs. Debendra Lal Saha and Others, AIR 1985 Cal 349 it is held as follows: ... Once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or not a moral or a fair disposition according to the Courts own standard. 24. Once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or not a moral or a fair disposition according to the Courts own standard. 24. The Lower Court has referred the book of Law of Wills by 4th edition by Mantha Ramamurti wherein it is stated as follows: The question of a sound mind is a dominant question in a Court of Probate. The test of a sound disposing mind is in a law a workable test. It means in plain language an appreciation of the fact that the man is making a Will, an appreciation of the contents of that Will and an appreciation of the nature of disposition that he is making having regard to the claims of affection and family relationship and claims of the society or community to which he belongs. 25. In another decision reported in Smt. Indu Bala Bose and Others Vs. Manindra Chandra Bose and Another, AIR 1982 SC 133 it is held as follows: 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 testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. 26. In the case of Labh Singh and Others Vs. Piara Singh and Another, AIR 1984 P & H 270 wherein it is held as follows: The Court has to be satisfied the Will was attested by two or more witnesses each of whom had either seen the testator sign or affix his mark. 27. In case of Illyas and Others Vs. Badshah alias Kamla, AIR 1990 MP 334 it has been held that atleast one attesting witness should be examined and he should speak not only about the testator's signature but also that each witness signed the Will in the presence of the Testator. 28. The decision cited in the case of Dhusbir Sing v. The State 1990 Delhi 59 speaks about the execution of the document under suspicious circumstances. 28. The decision cited in the case of Dhusbir Sing v. The State 1990 Delhi 59 speaks about the execution of the document under suspicious circumstances. In another case, in the case of Sushila Bala Sahba v. Saraswati Mondal it has been held the probate Court has to see the execution of the Will, soundness and disposing state of mind of testator at the relevant time and whether he had understood the nature and effect of such disposition. All these decisions clearly indicate that the Testator should have a sound mind and he must be capable of understanding as what he was doing and further the testator's signature should be identified by the witnesses and at least one of the attestator must be examined and he must speak of the signature of the attestor and testator. In my opinion all these aspects have been complied with in the present case. No doubt the burden is on the Appellants to prove the due execution of the Will but it is the preponderance of the probability that has to be seen. The Respondent himself by his conduct has contributed to the proof of the Will. It is not necessary to repeat that the Respondent has lost all the litigations and it is rather misventure on his part being a lawyer to say that testator was insane. He cannot blow hot and cold at the same time. If he was insane, then the Respondent could not have got the Power of Attorney. In this aspect, it is to be seen that the Respondent himself has attributed or helped the Appellants to prove their case. The another contention that was taken up is that Shanthachar had six sons and four daughters and the daughters are not given any property in the said Will. So according to the Respondent, due execution of the Will is shrouded in mystery. This arguments is untenable. It is the Will and wish of the Testator to give his property to any one he likes. Moreover, in this case, the daughters have not come forward contending that they have been excluded. The another decision is also cited by the Appellant in the lower Court namely Sanjiva alias Sanjiva Bhandary v. Vasantha and Ors. AIR 1991 Kar 86 . In this decision, the decision in the case of H. Venkatachala Iyengar Vs. Moreover, in this case, the daughters have not come forward contending that they have been excluded. The another decision is also cited by the Appellant in the lower Court namely Sanjiva alias Sanjiva Bhandary v. Vasantha and Ors. AIR 1991 Kar 86 . In this decision, the decision in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 is followed. It is observed by the Court itself that this case is leading case and it describes the six circumstances to be relied upon in that case namely shaky signature, a feeble mind, an unfair and unjust disposition of property the propounder himself taking a leading part in making of the Will under which he receives a substantial benefit. It is also pertinent to note that in the case late Shanthachar had not taken any active role in getting the Will executed. It is only others who are attestors. So the argument also does not give any benefit to the Respondent. In addition to these decisions, Mr. Tilgul, learned Counsel for the Appellants relied upon one more decision namely in the case of Ramakrishna Shivaram Hegde and Ors. v. F.M. Ganapathy Shivaram Hegde and Ors. ILR 1999 Kar 2876 wherein it is held as follows: Evidence Act, 1872 (Central Act No. 1 of 1872) Sections 67 and 68, Succession Act, 1925 (Central Act No. 39 of 1925) Sections 59 and 63 - Property retained by the father in the Family Partition was bequeathed to one of his sons under a Registered Will dated 5.8.1983 - Father died 5 years after the date of execution of the Will, then the other sons challenged the genuineness of the Will on the ground that the propounder of the Will had accompanied his father - Testator and naturally had influenced the father - High Court rejected this contention and held that the genuineness of the Will can be gathered from the fact that though the Testator lived for five years there was no attempt to cancel the same by the Testator. 29. The observations on page 20 of the judgment go to show that the Lower Court has taken the initiation to cite the decision on its own. 29. The observations on page 20 of the judgment go to show that the Lower Court has taken the initiation to cite the decision on its own. This inference is drawn by me because it is stated that "I rely on a decision reported in AIR 1190 SC 396 wherein it has been held as follows: It is therefore, essential that trust worthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of; the Will cannot be determined merely by considering the evidence produced by the propounder. In order to Judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself, it would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. 30. The Lower Court has again relied upon the decision in the case of Mrs. Sumangala T. Pai Vs. S. Sundaresa Pai and Others, AIR 1991 Ker 259 . This decision is with regard to unnaturalness of the Will. According to the Respondent deceased Madhavachar has not given reasons for not giving the properties to his nearest kith and kin probably to the children of his sister. This aspect is already answered supra. The Lower Court has rightly rejected to place any reliance on the decision in the case of Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, AIR 1962 SC 567 . And this decisions also cited in his Court because the deceased Madhavachar has not left behind any wife and children. In addition to these decision Mr. Dixit Learned Counsel for the Respondent has relied upon the decision in the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors. wherein it is stated as follows: (A) Succession Act (1925), Section 63 - Will Execution of, shrouded in suspicion - Evidence led by propounder of Will - Appreciation. Surjitinder Singh (decd.) and Others Vs. Smt. Jaswant Kaur, AIR 1975 P & H 377 , Reversed. wherein it is stated as follows: (A) Succession Act (1925), Section 63 - Will Execution of, shrouded in suspicion - Evidence led by propounder of Will - Appreciation. Surjitinder Singh (decd.) and Others Vs. Smt. Jaswant Kaur, AIR 1975 P & H 377 , Reversed. In cases where the execution of a Will is shrouded in suspicion, its proof eases to be a simple lis between the Plaintiff and the Defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arise for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless, the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will. Held, on facts and circumstances that the propounder had totally failed to discharge the heavy onus of explaining the suspicious circumstances surrounding the execution of the Will and of establishing that the document which he propounded was the last Will and testament of his grand-father. Surjitinder Singh (decd.) and Others Vs. Smt. Jaswant Kaur, AIR 1975 P & H 377 , Reversed H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 , Relied on. (B) Succession Act (1925), Section 63 - Will - Proof Nature and standard of evidence required. The propositions in respect of the nature and standard of evidence required to prove a Will summarised. It is not as if the burden of proof varies with the riches and social prestige of the testator but habits of life are prone to vary with the means of the man and the privileged few who happen to occupy high place in the social hierarchy have easy access to competent legal advice. Normally therefore, a genuine Will of a propertied man, well - positioned in society too, does not suffer from the loopholes and infirmities which may understandably beset testamentary instrument. 31. Mr. Dixit, learned Counsel for the Appellant also relied upon the Decision in the case of Channabasappa Vs. Shankariah and Anr. Normally therefore, a genuine Will of a propertied man, well - positioned in society too, does not suffer from the loopholes and infirmities which may understandably beset testamentary instrument. 31. Mr. Dixit, learned Counsel for the Appellant also relied upon the Decision in the case of Channabasappa Vs. Shankariah and Anr. 1961 MysS 1932 and submitted once there is recital in the partition that the deceased Madhavachar was entitled to enjoy till his life itself is sufficient to show that he was incompetent to make a Will. All the while he has taken up the contention that the deceased Madhavachar was not enjoying sound mind and he was incompetent, but it is not so. Subsequently there are suits for recovery of the possession of the property. In view of these circumstances, it is unacceptable that he was incompetent to execute the Will. Mr. Dixit also relied upon another decision in the case of K. Balakumar Vs. M.S. Jayaprakash and Others, (1997) 1 LW 306 wherein it is stated as follows: Admissions are substantive evidence by themselves, Admissions duly proved are admissible evidence, irrespective of whether the party making them appeared in the witness box or not or whether that party when appearing as witness was admissions. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. 32. In my opinion this is in respect of partition but the present proceedings are the probate proceedings. There is no second opinion about the principles but in my opinion this decision does not come to the aid of the Respondent. 33. The Lower Court has rightly rejected to import the article published in the Magazine by name "Kasturi" of August 1991. The word soundness of mind is not a myth. It is to be seen when a person is capable of understanding the things, is also capable of knowing the consequences of his own act. Even one step ahead can be gone to say the person might be suffering from partial insanity. Ultimately it has to be examined whether the testator was enjoying the sound mind. In my opinion, the evidence led on behalf of the Appellants is sufficient to show that the deceased Madhawachar was in sound state of mind. Therefore, in my opinion the interference is required to set aside the findings of the Lower Court. Ultimately it has to be examined whether the testator was enjoying the sound mind. In my opinion, the evidence led on behalf of the Appellants is sufficient to show that the deceased Madhawachar was in sound state of mind. Therefore, in my opinion the interference is required to set aside the findings of the Lower Court. Hence the following Order. 34. In the result the appeal is allowed. The judgment and Decree passed by the Lower Court in O.S. No. 2 of 1989 are set aside. The Appellants are entitled for grant of probate as prayed for in O.S. 2 of 1989. The parties to bear their own cost.