Anand Byrareddy, J.
1. The petition of the appellants seeking probate of the Will of the father of appellant No. 1 having been converted into a suit, on contest, and having been dismissed on merits, the present appeal is filed.
2. The facts are as follows :
3. The appellants namely the widow, two sons and the daughter of the testator were the plaintiffs before the trial court, Three other sons of the testator were the defendants.
The principal issue before the trial court was, whether the testator was of a sound disposing state of mind when the Will dated 15.6.1996 was executed.
The widow of the testator,, aged 70 years and two others had tendered evidence on behalf of the plaintiffs. Defendant No. 3 was examined on behalf of the defendants.
The testator was aged 85 years on the date of execution of the Will. From a reading of the judgment, fix' trial court has addressed itself to the suspicious circumstances alleged by the defendants and has accepted that the testator was physically and mentally infirm at that time of execution of the Will. That the evidence by the advocate who had drafted the Will to state that plaintiff No. 1 had always accompanied the testator to provide instructions in drafting,, execution and registration of the Will, indicated influence having brought on the testator and that the execution of the Will was not of his free volition and desire. The admission by the widow, of an earlier family arrangement and the variance in the disposition of the properties under the Will, not being to her knowledge and the details of the Will or its custody with the first plaintiff not being to her knowledge and the feet of admission that the entire affair was managed by plaintiff No. 1 and she being presented as the main witness of the propounders of the Will, coupled with the further inconsistency in her statement of always being by UK: side of the testator on account of his illness and stating that she did not accompany the testator to the Registrar's office while contending to the contrary earlier. And the attesting witness P.W.2 adding to this by stating that the widow WHS present at the time of registration of the Will, These circumstances coupled with the admitted fact that plaintiff No. 1 who is said to have left his home in embrace priesthood 16 years earlier, having returned an year prior to the death of the testator and having secured a major benefit under the Will in variance with the earlier family arrangement, according to the trial court, was indicative of undue influence having been brought on by plaintiff No. 1 on the testator to execute the Will against his free will and volition.
3. Shri A.K. Patil for the appellant contends that the trial court has adopted an unduly suspicious attitude in addressing the alleged suspicious circumstances in the case. Even assuming there was a pro-active role on the part of plaintiff No. 1 in persuading the testator, who was admittedly old and feeble, to execute a Will conferring benefit on him, it could not be said to be a ground for holding that the Will was invalid. In this regard, he draws attention to Section 59, Section 61 and Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act' for brevity), to contend that a Will made by a person who is feeble and debilitated but capable of exercising a judgment as to the proper mode of disposing of his property, would be a valid Will, Further, the Will would not be void merely on account of the fact that there was intercession and persuasion used by one of the beneficiaries under the Will to make a Will of a certain purport as long as the testator was capable of exercising his judgment, the Will would not be rendered invalid. And that, the Will having been executed in terms of Section 63 of the Act, the trial court was clearly in error in its judgment He would further submit that though there was a family arrangement earlier, this was in order to tide . over -the discord that had crept into the family. However, the fact that one of the beneficiaries under the earlier arrangement was one of the plaintiffs and that the earlier arrangement was merely an oral arrangement, which did not have the effect of talking away the right of the testator. And that the Will does confer a substantial portion of the estate on the respondents and that there is no disinheritance of any of the respondents. The change being that the assets were translated into 5 shares instead of 4 shares earlier. The further fact that plaintiff no, 1 who was the youngest son has been given a share which he did not have earlier and that it was a larger share, probably to encourage him to take care of his aged mother, was not a circumstance to evoke the suspicion of the court.
He submits that issues 2 and 3, which were framed by the trial court namely, 'whether the Will was forged and concocted' and 'whether the testator was mentally and physically incapable', were deleted by the trial court and hence there was no evidence on record nor an issue as regards the state of the mind of the testator for the trial court to arrive at its findings.
The counsel relies on the judgments in the case of Rani Purnima Debt v. Kumar Khagendra Narayan Deb : [1962]3SCR195 to contend that the fact that there was registration would be an important circumstance in favour of the will being genuine. The said judgment was followed in the case of Surendra Pol v. Saraswati Arora : [1975]1SCR687 wherein it was further laid down that when suspicious circumstances are alleged, it would be for the propounder to dispel the same. However, the counsel would submit that having regard to the facts and circumstances of the case on hand and the law, it could not be said there were any suspicious circumstances, which required to be explained. And prays that the judgment be set aside and issue appropriate directions to the court below for grant of probate.
4. Per contra, Shri K. Giridhar for the respondents submits that the following circumstances are apparent from the material on record. Firstly, that the testator had executed the Will of his free volition. He was aged and feeble to his actions. He needed the constant attention of the second plaintiff for all his physical needs. The burden was heavy on the plaintiffs to demonstrate that the testator Was capable of forming his own judgment in executing the Will The plaintiffs having miserably failed to demonstrate the same, the lower court has rightly held that the Will was not duly executed of the free will of the testator.
Secondly, it is an admitted fact that plaintiff no, 1 who had not been provided any share under the informal family arrangement that was acted upon, and who had embraced priesthood and lived away from the family for 16 years had returned and was instrumental in having got the Will prepared through an advocate and also having procured the registration of the same had clearly brought undue influence to bear on the testator in having obtained the Will for his major benefit without the free will and volition of the testator.
Thirdly, the widow of the testator who has admitted that she was blissfully unaware of the contents of the Will and inconsistently having maintained that she was ever present with the testator and also having asserted that she was not so present at other times and having been offered as the principal witness for the propounders, did not dispel the grave suspicion raised by the above circumstances.
Fourthly, the advocate who had prepared the draft of the Will having confirmed that the plaintiff No. 1 had always accompanied for purposes of providing instructions during the preparation of the Will was a telling circumstance to support the impugned judgment
Fifthly, the testator not having prefaced the bequests with reference to the earlier family arrangement and not having stated the reasons for varying the allotment of shares, to provide a major benefit to the first plaintiff is a glaring suspicious circumstance that has remained unexplained,
The counsel has relied on the following judgments in support of his case.
a) H. Venkatachala lyenar v. B.N. Thimmajamma : AIR1959SC443 - to contend, as held at paragraph 20 therein, that where circumstances indicate that the Will may not have been executed of the testator's free will and mind, the court would expect that all legitimate suspicions be completely removed. The burden would be heavy on the propounders in this regard.
b) Madhuaudan Das v. Narayanibai : [1983]1SCR851 - where the findings of fact by the trial court are mainly based on oral evidence, the first appellate court ought not to disturb the same unless the trial court's approach in appraisal of evidence appears materially erroneous.
c) Gorantla Thatcdah v. Thotakura Venkata Subbaiah : [1968]3SCR473 - wherein it is held that 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 propound 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 benefit 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 manner.
The counsel has further relied upon other judgments to bolster the above propositions, which are not necessary to be extracted. It is submitted that there are no grounds made out for interference with the findings of the court below and hence the appeal be dismissed.
5. On these rival contentions and from a consideration of the record, it is to be seen that the execution and registration of the Will itself is not in serious dispute. The thrust if the defendant's case is that the testator was old and feeble and hence did not possess the judgment to have been aware of the contents of the Will and that plaintiff no, 1 has engineered the execution and registration of the same and therefore is invalid. This is evident from the feet that ' the written statement filed by Defendant No. 2 specifically denied that there was a Will executed by the testator and that the testator was not in a position either physically or mentally to execute any document at the time the alleged Will was said to have been executed. And that the alleged Will was a sham document Of the Issues framed Issue No. 2 and 3 read as follows :
Issues:
2. Do the Defendants prove that the Will sought to be probated is a concocted document ?
3. Do the Defendants prove that the deceased was weak physically and mentally at the time of the alleged Will?
These issues have been deleted by the trial court as being irrelevant in view of Issue No. 1, which reads as follows:
1. Do plaintiffs prove that the deceased Anthony Rebello executed the Will dated 15.6.1996 while in a sound disposing mind and in the presence of the attestors.
6. It is significant to note that the alleged suspicious -circumstances sought to be highlighted and on which the trial court has expounded at length are absent in the pleadings. The examination in chief of Defendant No. 3 is also bereft of particulars as to the alleged suspicions circumstances. It is therefore inexplicable that the trial court has conjured the several circumstances urged for its consideration. The defendants not having objected to tin: deletion of Issues 2 and 3, above referred, the question for the consideration of the court was limited to the state of mind of the testator at the time of execution of the Will
7. In my opinion, the plaintiffs had discharged that burden adequately by examining two independent witnesses, namely the advocate who had drafted the Will and assisted the testator in the registration of the same, as well as one of the attesting witnesses to the Will. These witnesses have vouched for the sound state of mind of the deceased testator at the time of execution of the Will The testimony of these witnesses, who are not shown to have colluded with the plaintiffs, has not been demonstrated to be false and unacceptable.
8. It is also my opinion that the trial court embarking upon addressing the alleged suspicious circumstances WHS proceeding capriciously and without any plea or proof in this regard.
9. Even if the argumentative approach of the, court below is tested on the touchstone of the provisions of the Indian Succession Act, 1925, assuming that such allegedly suspicious circumstances were present The same cannot be held to circumstances that would invalidate the Will.
10. As can be seen the legislative intent of the scope of Section 59 is indicated through several illustrations under the said Section, The Section and illustrations are reproduced here for ready reference;
59. Person capable of making wills. - Every person of sound mind not being a minor may dispose of his property by will.
Illustrations
(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.
(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.
(iii) A being very feeble and debilitated, but capable of exercising a judgement as to the proper mode of disposing of his property, makes a will. This is a valid will.
As can be seen from illustration (iii) above the testator could execute a Will He has done so by instructing a legal counsel and has also registered the same.
11. The view of the Supreme Court in the decided cases cited at the bar is that a Will, which has been duly registered, is a circumstance to prove its genuineness. But the-mere fact that a Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists, without submitting the evidence of registration to a close examination.... For it is not unknown that registration may take place without the executant really knowing what he was registering,
12. In the instant case, 1 hold that the witnesses on behalf of the plaintiffs have amply established the due execution of the Will by the testator while being in a sound state of mind.
13. Further, the several circumstances referred to by the defendants, possibly in the course of evidence and arguments, though not in their pleadings, and adopted by the trial court in its assessment of the merits of the case - is directed at plaintiff no, 1 and his motives. Even if it could be said that plaintiff No. 1 had managed to persuade the testator to make a disposition in the Will, loaded in his favour, it would not result in rendering the will an invalidity nor could it be said to be a suspicious circumstance, if be was not the sole and only beneficiary and if other heirs were not disinherited of their shares. In this regard, useful reference may be made to Section 61 and illustrations thereto.
61. Will obtained by fraud, coercion or importunity - A will or any part of a. will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
Illustrations
(i) A, falsely and knowingly represents to the testator that the testator's only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in A's favour; such will has been obtained by fraud, and is invalid.
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
(iii) A, being a prisoner by lawful authority, makes his will The will is not invalid by reason of the imprisonment.
(iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C, B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
(v) A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid.
(vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.
(vii) A, being in such a state of health as to be capable of exercising his own Judgement and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.
(viii) A, with a view to obtaining a legacy from B, pays him attention and flatters and thereby produces in him a capricious partiality to A, B, in consequence of such attention and flattery, makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.
As can be seen from illustration (vii) and (viii) above, the Will would not be rendered void even if the motives and conduct of the plaintiff No. 1 had been established. This in any event is not forthcoming in the present case.
14. From the evidence on record, it is plain that the Will in question has been executed in accordance with Section 63 of the Act and was hence valid. No suspicious circumstances are made out, much less are pleaded. The case law cited by the respondents does not aid them as the same are distinguishable on facts and circumstances. Accordingly the appeal is allowed. The judgement of the lower court is set aside. The suit of the appellants is decreed with costs.