Gorantla Thataiah Vs. Thotakura
Venkata Subbaiah & Ors  INSC 67 (19 March 1968)
19/03/1968 RAMASWAMI, V.
CITATION: 1968 AIR 1332 1968 SCR (3) 473
Will-Propounded taking prominent part, in
execution of and receiving benefit under-Principles regarding scrutiny of
evidence of execution and sound disposing state of mind of testator.
One V lost his father when he was only 10
years old and.
thereafter lived along with his mother, in
thehouse of the first defendant who was his maternal uncle. The first defendant
had considerable influence over V as he was slow witted and below the average
level of intelligence and, understanding. V died when he was 24 years old. A
days before his death he executed a will by
which he bequeathed his entire property to the first defendant absolutely with
a direction that his mother should be maintained, and that, even if his mother
lived separately from the first defendant, she was to have only a life interest
in certain items which were also to be taken absolutely by the first defendant
after her death. At the time of the execution of the -will V was physically in
a weak condition. The first defendant took a prominent part in summoning the
attesting witnesses and the scribe and in Procuring, writing materials for the
execution of the will.
Evidence was given on behalf the first
defendant that though V was delirious on the day previous to the execution of
the will and also subsequent to that date, V was in a normal condition on the
date of the execution of the will.
On the question of the validity of the will,
HELD : The will was not executed in a sound
disposing state of mind and was therefore not legally valid. [480,A-B] In a
case in which a will is prepared under circumstance which raise the suspicion
of the court that it does not express the mind of the testator it is for those
who -propound the will to remove that suspicion. What are suspicious
circumstances must be judged on the facts and circumstances of each particular
case. If, however, the Propounder takes a prominent part in the execution of
the will which confers substantial benefits on him that itself is a suspicious
circumstance attending the execution of the will and in appreciating the
evidence in -such a case the court should proceed in a vigilant and cautious,
[477 R; 478 A-B] Barry v. Butlin, (1838) 2
Moo. P.C. 480, 482, Fulton v.
Andrew, (1875) L.R. 7 H.L. 448, Tyrrell v.
Painton, (1894) P. 151, 157, 159 and Sarat Kumari Bibi v. Sakhi Chand &
Ors., 56 I.A. 62, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 431 of 1965.
Appeal from the judgment and decree dated
August 22, 1963 of the Andhra Pradesh High Court in Appeal No. 554 of 1959.
H. R. Gokhale and K. R. Chaudhuri, for the
D. Narsa Raju, S. T. Desai, A. Vedavalli and
A. V. Rangam for the respondents.
474 The Judgment of the Court was delivered
by Ramaswami, J. This appeal is brought by certificate on behalf of the
plaintiff from the judgment of the High Court of Andhra Pradesh in Appeal Suit
No. 554 of 1959 dated August 22, 1963.
One Gorantla Tathiah, as the, sole plaintiff,
filed O.S. No. 2 ,of 1957 in the Court of the Subordinate Judge'. Bapatla for
possession of certain properties which had been left by Gorantla Veeriah when
he died issueless on June 24, 1939.
Originally, there were ten defendants in the
Defendant no. 1 is the maternal uncle of
Veeriah and Defendant no. 2 and Defendant .no. 3 are, the sons of Defendant no.
1. Defendants nos. 4 to 8 were the alienees from Defendant no. 1's family.
Defendants nos. -7, 9 and 10 did not contest the suit. Defendant no. 8 died in
the ,course of the suit and his legal representatives were added as Defendants
I I to 14. Defendants 1 to 3 contested the suit on the ,ground that Defendant
no. 1 became entitled to the properties of Veeriah under the will, Ex. B-4
dated June, 17, 1939 which Veeriah executed in his favour. It was contended in
the alternative -that at the time when the reversion opened on the death of
Veeriah's mother, Rattamma on October 1, 1956, Defendant no. 1 was the nearest
heir and not the plaintiff, under the Hindu Succession Act (XXX of 1956) which
had come into force on October 17, 1956. The Additional Subordinate Judge,
Bapatla held' that the will was true and genuine but it was not legally valid
as it was executed by Veeeriah at a time when he had no testamentary capacity.
It was also held that the Hindu Succession Act did not apply to the facts of
the case. The Additional Subordinate Judge accordingly granted a decree for
-possession of properties except -item no. 4 in favour of.
the plaintiff as against Defendants nos. I to
3, 6, 7 and I I to 14. Defendants I to 3, 7, 1 1 and 1 3 took the matter in
appeal to the High Court of Andhra Pradesh. The plaintiff also Preferred a
Memorandum of Cross Objections to the -,extent the trial Court's decree was
against him. By its judgment dated August 22, 1963, the High Court allowed the
appeal, holding that the will, Ex. B-4 was executed by Veeriah in a sound and
disposing state of mind and that the will was not only true but was -valid and
binding upon the, plaintiff. The High Court accordingly dismissed the suit.
The Memorandum of Cross Objections was also
The first question to be considered in this
appeal is whether the will, Ex. B-4 was true and genuine and was executed by
Veeriah in a sound and disposing state of mind.
It is not disputed that one Gangiah died
leaving his widow Rattamma and his only son through her called Veeriah and a
-young daughter. The girl died without leaving any issue in the -year 1932.
Veeriah was a little boy and it is not disputed that 475 he was below average,
in intelligence and understanding.
Rattamma alongwith her son took up residence
with her brother, Defendant no. I who was a man of great wealth and influence
in the. village, owning fifty acres of land and outstanding credits to the
extent of Rs. 20,600/-.
Rattamma's husband had left properties to the
extent of 13 acres of land. In spite of owning so much property Veeriah was
engaged as a cow-boy in tending cattle. In June 1939, he had an attack of
typhoid, became bed-ridden and ultimately died of the disease on June 24, 1939.
The case of the contesting defendants was that Veeriah executed the will, Ex.
B-4 on June 17, 1939, that D.W. 4 wrote it and nine witnesses attested it but
the will was not registered in Veeriah's life-time. On October 15, 1939,
defendant no. 1. and Raittamma presented the will, Ex. B-4 before the SubRegistrar,
Chirala for registration. The Sub-Registrar, however, refused to register the,
will by his order, Ex. A45 in W.C. 4 of 1939. Defendant no. 1 preferred an
appeal before the District Registrar, Guntur but the appeal was dismissed.
Defendant no. I then filed O.S. no. III of 1940 in the court of District
Munsif, Bapatla against Ramayya (father of defendants 9 and 10), the plaintiff
and Rattamma for a direction for registration of the will. The District Munsif
returned the will to defendant no. I for want of pecuniary ,jurisdiction.
Defendant no. 1 presented it to the Subordinate Judge, Bapatla and got it
numbered as O.S. no. 6 of 1941. The suit was ultimately dismissed by the
Subordinate Judge on the question of limitation. Defendant no. 1 and Rattamma
filed O.S. no. 13 of 1942 in the Subordinate Judge's court, Bapatla for a
declaration that the will was genume and valid. Ramayya filed a written
statement and the suit was ultimately decreed in favour of Defendant no. I and
Rattamma. The present plaintiff, Gorantla Tathaiah was, however, not a party to
In the will, Ex. B-4 it is stated by the
testator as follows "... Typhoid condition has set in. As no treatment has
been effective in curing this condition I have lost confidence that I will
survive. Therefore I have wholeheartedly made the following disposition
regarding my movable and immovable properties in order that there may be no
obstruction in future from any source whatsoever.
That my mother Rattamma should be maintained
comfortably for her life-time and.that in case there is disagreement between
her and I material uncle. Venkatasubbayya and they decide to live separately,
my mother, Rattamma, should enjoy the income of the property mentioned in 'B'
Schedule for her life-time without exercising any powers of disposition by way
of gift, sale etc., over the property and that after her life.
L7 Sup. C.I./68-6 476 time. the entire
property mentioned in 'B' schedule should devolve in my maternal uncle,
Venkatasubbayya. My maternal uncle, Venkatasubbayya shall enjoy the entire
properties mentioned in 'A' and 'B' Schedules with absolute powers of
disposition by way of gift, sale etc." In the will it is mentioned that
Veeriah had sold his land on May 30, 1939 to defendant no. 4 and received an
advance of Rs. 165/with the stipulation that the balance of sale price should
be paid at the time of registration. Veeriahl also said that in case he did not
live long enough, defendant no. 1 should complete the sale transaction and
receive the balance of price from defendant no. 4. The will was written by one
Ammanamanch Sambiah, D.W. 4 the karnam of the village. There are 9 attesting
witnesses of whom three are dead. On behalf of the plaintiff two of the;
attestors P.Ws. 8 and 9 were examined and two attesting witnesses were examined
as Court witnesses I and 2. On behalf of defendants two attesting witnesses
D.v. I and 6 besides the scribe D.W.
4 gave evidence. P.W. 8 deposed that the
testator did not give any instructions or particulars for drafting the will.
The testator was very weak and in a delirious
state and he was not in a position to put his thumb impression to the will.
P.W. 9 is stone deaf and he could not give proper evidence. He did not remember
if Veeriah was raving and was tearing his clothes. D.Ws. 1, 4, 6 and 14 and
C.Ws. 1 and 2 say that the testator was in a sound and disposing state ofmind.
It was the testator who gave instructions regarding the disposition of the
properties. D.W. 4 wrote the will and read it over to Veeriah who approved of
it and put his thumb impression thereon. The evidence of P.Ws. 8 and 9 is
therefore clearly in conflict with the evidence of C.Ws. I and 2 and D.Ws. 1,
4, 6 and 14. The evidence of C.Ws. I and 2 is interested. It is admitted that
C.W. I is related to defendant no. 1 and C.W. 2 is indebted to the first
defendant to the extent of Rs. 1,400/-. As regards D.Ws. 1, 4 and 6, the trial
court has remarked that their testimony is not impartial and we see no reason
to take a different view as regards the effect of their testimony. So far as
D.W. 1 is concerned, he appears to have khatha dealings with the first
defendant. D.W. 4 admitted that he and Venkataswamy were good friends and
worked as karnam and Village Munsif for 30 years. There was a case of
misappropriation against Venkataswamy and D.W. 4 deposed in his favour in that
case. It is in evidence that D.W. 6 is related to Ambati Veeriah who is married
to the, first defendant's niece. With regard to P.Ws. 8 and 9 the High Court
has remarked that they had attested the will without any protest or adding any
note Of protest though the testator, Veeriah was not in a sound state of mind
at the time of the execution of the will. In our opinion, this circumstance is
of no consequence and the High Court was not justified in rejecting the
evidence of P.Ws. 8 and 9 on this ground alone. On the other hand, there are
two important features in the present case which throw a great deal of doubt as
to whether the testator was in a sound and disposing state of mind at the time
of the execution of the will. It is the admitted position that, the first
defendant took a prominent role at the time of the execution of the will by
summoning the scribe and the attesting witnesses. It is stated by D.W. 1 that
the first defendant, also procured the writing materials and the black ink for
affixing the thumb impressions of the witnesses. It is also admitted that the
will preferred the first defendant to the mother. Normally, the testator would
have bequeathed all )us property to the mother and would have also given her
power to adopt a boy to perpetuate the lineage of the family. Instead the
mother was given, in the will, a life interest in items 1 and 6 and the rest of
the properties were given absolutely to defendant no. 1. It is undisputed that
the testator was 24 years of age at the time of the execution of the will and
that he was far below the average level of intelligence and understanding and
nobody was prepared to offer a girl in marriage to him. There is evidence that
Veeriah was "lacking in wits" and that he was employed for tending
cattle. Furthermore, the testator was suffering from typhoid fever at the time
of the execution of the will and he died a week thereafter i.e., on June 24,
1939. In Ex. B-4 it is recited that the testator was ailing for about 15 days
and had become delirious. According to D.W. 4 when he arrived Veeriah was lying
on a cot and he was not in a position to sit up by himself. Both D.Ws. I and 4
admit that the attesting witnesses and the scribe had all bled and waited for
nearly an hour, Both P.Ws. 8 and 9 say that at the time of the execution of the
will. Veeriah was in a delirious state. D.Ws, 1, 4, 6, 14 and C.W. I all admit
that the testator was delirious on the-day previous to the execution of the
will and also subsequent to the day of the execution of the will. These
witnesses, however, state that the testator, was quite all right and in normal
condition on the date of the execution of the will. It is difficult to accept
this part of the defence evidence. Considering that the condition of the
testator became, worse and he died a week thereafter it is difficult to accept
the, evidence of defence witnesses and of CW. I that the testator was, in a
sound state of mind on the date of the execution of the win but he was in a
delirious 'state the day before and the day after the execution of the will. In
our opinion, the Subordinate Judge was right in his conclusion that the
testator was physically weak and in a delirious mental state at the time of the
execution of the will. We think the High Court had no justification for
reversing the view taken by the Subordinate Judge on this point.
It is well-established that in a case in
which a will is prepared under circumstances which raise the suspicion of the
court that it does not express the mind of the testator it is for those who pro478
pound the will to remove that suspicion. What are suspicious circumstances must
be judged in the facts and circumstances of each particular case. -If, however,
the propounder takes a prominent part in the execution of the will which
confers substantial benefits on him that itself is a suspicious circumstance
attending-7 the execution of the will and in appreciating the evidence in such
a case, the court should proceed in a vigilant and cautious manner.
It is observed in Williams on "Executors
and Administrators", Vol. I, 13th Ed., p. 92:
"Although the rule of Rom an Law that
'Qui se scripsit 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." According to the decision in
Fulton v. Andrew('), "those who take a benefit under a will, and have been
instrumental in preparing or obtaining it, have thrown upon them the onus of
showing, the righteousness of the transaction ". "There is however no
unyielding rule of law (especially where the ingredient of fraud enters into
the case) that, when it has been proved that a testator, competent in mind, has
had a will read over to him, and has thereupon executed it, all further enquiry
is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited
with approval the well known observations of Baron Parke in the case of Barry
v. Butlin (2). The two rules of law set out by Baron Parke are : "first,
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 isthe last will of a free and capable testator"; "the
second is, that, if a party *rites or prepares a will under which he takes a
benefit, that is a circumstance that ought generally to excite the suspicion of
the court and calls upon 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 propounded does express the true will of the deceased." In Sarat
Kumari Bibi v. Sakhi Chand & Ors., (3) the Judicial Committee made it clear
that "the principle which requires the propounder to remove suspicions
from the mind of the Court is not confined only to cases where the propounder
takes part in the (1) (1875) L.R.7H.L.448. (2) (1838) 2 Moo. P.C.480,482.
(3) 56 I.A. 62.
479 execution of the will and receives
benefit under it. There may be other suspicious circumstances attending on the
execution of the will and even in such cases it is the duty of the propounder
to remove all clouds and satisfy the conscience of the court that the
instrument propounded is the last will of the testator." This view is
supported by the following observations made by Lindley and Davey, L.
JJ., in Tyrrell v. Painton(1):
"The rule in Barry v. Butline (2 Moo.
480); Fulton v. Andrew [(1875) L.R. 7,H.L.
448]; and Brown v. Fisher [(1890) 63 L.T.
465] is not, in my opinion, confined to the single case in which a will is
prepared by or on the instructions of the person taking large benefits under
it, but extends to all cases in which circumstances exist which excite the
suspicion of the Court; and wherever such circumstances exist, and whatever
their nature may be, it is for those who propound the will to remove such
suspicion and to prove affirmatively that the testator knew and approved of the
contents of the document, and it is only where this is done that the onus is
thrown on those who oppose the will to prove fraud or undue influence, or
whatever else they rely on to displace the case made for proving the
will." (Lindley, L.J.).
"It must not be supposed the principle
in Barry v Butlin (2 Moo. P.C. 480) is confined to cases where the person who
prepares the will is the person who takes the benefit under it-that is one
state of things which raises a suspicion; but the principle is that wherever a
will is prepared under circumstances which raise a well grounded suspicion that
it does not express the mind of the testator the Court ought not to pronounce
in favour of it unless that suspicion is removed." (Davey, L.J.).
It is in the light of these principles that
the evidence adduced in this case will have to be considered. As we have
already pointed out, there is abundant testimony in this case which proves
'beyond doubt that the testator was physically in a weak condition and that he
was in a delirious state of mind at the time of the execution of the will. It
is admitted that the first defendant took a prominent part in summoning the
attesting witnesses and the scribe and in procuring the writing materials for
the execution of the will. There is also evidence that Veeriah lost his father,
Gangiah when he was hardly 10 years of age and after Gangiah's death the first
defendant brought Rattamma and Veeriah to his house and was looking after
them., The first defendant had therefore considerable influence over Veeriah
and his mother Rattamma.
(1) (1894) P. 151,157,159.
480 There is also the circumstance that
Veeriah was only 24 years of age at the time of the execution of the will and
he was slow witted and below the average level of intelligence and
understanding. Having regard to the cumulative effect of all the circumstances
we are of opinion that the will, Ex. B-4 was not executed by Veeriah in a sound
and disposing state of mind and was not legally valid and binding upon the
plaintiff. We accordingly set aside the finding of the High Court on this
It is, however, not possible for us to
finally dispose of this appeal because the High Court has not examined the
second question arising in this case, namely, whether the Hindu Succession Act
(Act XXX of 1956) is applicable to the case and whether defendant no. 1 was the
nearest heir to succeed to the estate of the deceased Veeriah in preference to
all others including the appellant, defendants 9 and 10.
We therefore consider it necessary that the
case should go back to the High Court for hearing the parties afresh and
recording a finding on this question and to submit it to this Court within
three months from the date of receipt of the record by the High Court. The
parties will not be allowed to give additional evidence in the case and the
High Court will submit a finding on the evidence already adduced by the
parties. The appeal will be placed for further hearing before this Court after
the finding is submitted by the High Court in accordance with the directions we
V.P.S. Appeal remanded.