PETITIONER:
MRS. JOYCE PRIMROSE PRESTOR(NEE VAS)
Vs.
RESPONDENT:
MISS VERA MARIE VAS & ORS.
DATE OF JUDGMENT: 12/04/1996
BENCH:
PARIPOORNAN, K.S.(J)
PUNCHHI, M.M.
CITATION:
JT 1996 (4) 333 1996 SCALE (3)596
ACT
HEADNOTE
JUDGMENT
JUDGMENT PARIPOORNAN, J.
The plaintiff in O.S. No. 4/1970, IInd Additional District Judge’s Court Bangalore, is the appellant herein. She filed an application under Section 276 of the Indian Succession Act, P&SC No.124/1969 for the grant of Letters of Administration of the estate of the deceased, Mrs. primrose Mary Vas (her mother). Mrs. Primrose Mary Vas had executed Ex. P-1, will Dated 19.6.1964. The first defendant in the suit (husband of the testatrix) and the second defendant are the executors of the said will. The plaintiff called upon the executors on 6.3.1969 to take out probate. She was not favoured with any reply. On 26.7.1969, M/S. D.A. Costa & D.A. Costa, Advocates informed the plaintiff that the second defendant was unwilling to act as the executor and that the first defendant was intending to contest the Will. It was in these circumstances the plaintiff as a lagatee, prayed for the grant of letters of Administration of the estate of the deceased, Mrs. Primrose Mary Vas (her mother) with a copy of the will annexed as Annexure, Ex.P-1. The first defendant in the suit is Mr. Emmanuel Joseph Vas, husband of testatrix, the second defendant is one of the executors of the Will, plaintiff, defendants 3 and 4 are daughters of the testatrix and the 5th defendant is the testatrix’s son. We will be referring to the parties in this appeal, as they were arrayed in the suit. The first defendant died pending the suit and defendants 3 to 5 were recorded as his legal heirs. In this appeal filled by the plaintiff, (one of the daughters and a legatee under the Will), the respondents are defendants 3, 4 and 5 in the suit. The trial court by judgment dated 29.1.1974, held that the Will of Mrs. Primrose Mary Vas dated 19.6.1964 is perfectly valid and genuine, and ordered thus:
"The suit is decreed. The plaintiff
shall be granted letters of
administration with a copy of the
Will (Ex.P.1) ennexed, subject to
the following conditions Viz., (1)
that she executes the necessary
administration bond under Section
291 of the Indian Succession Act to
the extent of the value of the
bequest made to deft. 3 & 4 (2)
that she produces Estate Duty
clearance certificate and (3) that
she pays the necessary court fee
for drawing up the letters of
administration. The defendants. 3
and 4 will pay the costs of this to
the plaintiff and bear their own." In appeal, by defendants 3 and 4, a Division Bench of the Karnataka High Court, by judgment dated. 11.7.1978, reversed the said judgment and held that the Will is shrouded in suspicion and the propounder (the plaintiff) has failed to satisfy " the judicial conscience, dispelling all the doubts that arise in this case, that the Will, Ex.P-1 was legally and properly executed by Mrs. Vas with attestation by Mrs. Gadre and another." 2. The plaintiff filed S.S.P. (C) No. 991/79 and this Court granted leave to appal against the aforesaid judgment of the High Court of Karnataka by order dated 13.12.1979. and hence this appeal. 3 In this appeal the main question that falls for consideration is, the legality and validity of the Will dated 19.6.1964 executed by the testatrix, late Mrs. Primrose Mary Vas. 4 A few facts, which are not in controversy should be borne in mind in adjudicating the case. The testatrix is one Mrs. Primrose Mary Vas. She was running a hotel, namely, "Terra Vera", at Bangalore. She was aged 63 at the time of execution of the Will, Ex.P-1 dated 19.6.1964. It has come out in evidence that she was admitted to Hospital on 21.6.1964 and was operated upon on 26.6.1964. She was discharged on 12.7.1964. The testatrix died in Bangalore on 23.6.1968, i.e., four years after the execution of the Will. The first defendant, Mr. Emmanuel Joseph Vas, an Advocate by profession, was 80 years old at the time of execution of the Will. He was chionic diabetic patient. His toes were amputated. He had his own properties. He had executed a Will regarding his properties wherein nothing was given to the plaintiff. The first defendant (husband) and second defendant, a retired District Judge are the executors of the Will . They failed to take steps to obtain probate of the Will. The 3rd defendant, sister of the plaintiff is unmarried. The 4th defendant, another sister, is married and is in Bombay with family. The 5th defendant is the son of testatrix. He is America since 1954. A citizen of U.S.A., he is admittedly well off, in that country. He is not a beneficiary under the Will, Ex.P-1. Though notice was personally served on him, he did not enter appearance either in the courts below or in this Court. He did not contest the Will. It is admitted by the 3rd defendant that the entire Will (Ex.P.1) is in the handwriting of the testatrix, her mother. It is a "holograph Will" The Will (Ex.P-1) was in the custody of the first defendant. There are two attesters to Ex.P-1. The first attester (PW-1) is Mrs. Gadre, admittedly, a frequent visitor to Bangalore and Hotel Terra Vera. The other attester is Mr. Fermie, a retired Post- Master General, and a permanent boarder in the hotel, Terra Vera. It has come out in evidence that Mr. Fermie, the other attester was no longer alive when the suit came up for trial and so was not examined. Apart form one of the attesters to the Will (PW-1), the plaintiff, examined herself as PW-2 Under the Will, Ex.P-1, the testatrix had given equal shares to all the three daughters,. It is evident from the evidence of PW-1 that the plaintiff was not present when the Will was executed and signed by the testatrix and the attesters, The defendants did not in fact challenge that the Will was executed by the testatrix Mrs. Primrose Mary Vas. Their only attack was about the validity of the same as one tainted by undue influence of the plaintiff. 5 The trial court framed the following five issues:
"1. Whether the plaintiff proves
the due execution of the suit Will?
2. Whether plaintiff proves that
the testator had the sound
disposing state of mind to execute
the said Will?
3. Whether the defendants prove the
alleged undue influence and that
the Will is tainted by such
influence?
4. Whether the Will is valid?
5. What relief ?" 6. After discussion of the relevant evidence, the trial court entered the following findings:
"Issue No.1: THE plaintiff has
proved due execution of the Will,
Issue No2: The plaintiff has proved
that the testator had the sound
disposing state of mind to execute
the said will;
Issue No3: The defendants have
failed to prove the alleged undue
influence nor have they proved that
the will is tainted by such
influence;
Issue No.4: The Will is perfectly
valid;
Issue No.5: The plaintiff is
entitled to the reliefs she has
sought." 7. We will now extract the contents of Ex.P-1, original Will executed by Mrs. Primrose Mary Vas:
" This is the last Will and
Testament of Mrs. Primrose Mary
Vas, wife of Emmanuel Joseph Vas at
present residing in "Terra Vera",
St. Mark’s Road, Bangalore, I
hereby appoint my husband Emmanuel
Joseph Vas and Mr. Joseph Richard
Nazareth as joint and several
executors of this my Will and
Testament. Out of my money in the
State Bank of Mysore, in the State
Bank of India and the Post Office
Savings Bank in the Shoolay Post
Office, I bequeath Rupees Five
Thousand to my daughter Dulcie
Alice Vas and Rupees Five thousand
to my daughter Joyce Primrose
Preston. I hold shares in the new
India Assurance Co., Ltd. These I
give to my daughter Vera Marie Vas.
The rest of my money in the State
Bank of Mysore, the State Bank of
India and the Post Office Savings
Bank I give to my daughter Vera
Marie Vas. I bequeath my real
property " Terra Vera" on St.
Mark’s road in Bangalore with all
the furniture, crockery and
cutlery it contains in equal shares
to my three daughters Vera Marie
Vas, Dulcie Alice Vas and Joyce
primrose Preston. In witness
whereof I Primrose Mary Vas have
this nineteenth day of June 1964
set my hand.
Sd.Primrose Mary Vas
(Ex.P1(A) )
Signed by Primrose Mary Vas in
the presence of both of us present
at the same time and in the
presence of each other.
Sd.(Mrs.) Olive Gadre-Ex.P1(b)." 8 The main attack on the will was pleaded by the first defendant. Defendants 3 and 4 filed a joint written statement and took up the plea substantially in conformity with the one taken up by the first defendant. The gravamen of the charge against the validity of the Will runs as follows.
It was the first defendant who purchased "Terra Vera" buildings in 1941 jointly in his name and in the name of his wife. Later, he conveyed the property to his wife. He purchased necessary furniture, crockery etc. for the hotel. It was without his knowledge or consent that his wife (Mrs. Vas ) made the Will. It was so made provisionally under peculiar circumstances. Just before the admission of Mrs. Vas to the hospital for operation, 3rd defendant who was at Bombay, was informed. The plaintiff and her husband were staying with the deceased. At that time, when the deceased was ailing, was about to be admitted to the hospital and was not in sound disposing state of mind, The plaintiff kept that Will with herself and she inserted it in the drawers of the first defendant’s room sometime after the demise of Mrs. Vas. The Will was found by the 3rd defendant who showed it to the plaintiff and then, handed over the same to their lawyer, D.W. 3. Till then, the first defendant was not aware of the same. The Will appeared suddenly under peculiar circumstances in the first defendant’s drawers. According to the firs defendant, it should have been inserted in his drawer by the plaintiff herself. The plaintiff was well provided for and a separate house was purchased for her. The deceased completely forgot about the Will and subsequently expressed her intention contrary to the recitals in the Will. According to the deceased, it was understood that Terre Vera should become the property of the defendants. It is thereafter, the central front plot in the said property was given as a gift by the deceased to the plaintiff. In these circumstances, the plea was that the Will is not valid and cannot be considered to be the last Will and testament of the deceased because she had subsequently, departed substantially from the intended distribution of the property by that Will. In substance, the plea was that the plaintiff having got the will when the deceased was about to be admitted to hospital, kept it with her secretly and the Will came into existence under suspicious circumstances. 9 After referring to the legal requirements envisaged in Section 58 of the Indian Succession Act and Section 68 of the Indian Evidence Act and the background afforded by various facts stated in paragraph 4 (supra), the trial court found the following:-
Ex.P-1, Will, is in the own handwriting of the testatrix. It was attested by PW-1, Mrs. Gadre and other attester, Mr. Fermie being dead, could not be examined. Both the attesters were permanent boarders in Terra Vera. The 3rd Defendant admitted in evidence that the Will is entirely in the handwriting of her mother and it bears her signature. It was she who handed over the Will to DW-3, Advocate, for safe custody. DW-3 stated that the deceased was one of his clients and had in fact, got three Gift Deeds drafted by him, relating to the front portions of Terra Vera. PW-1, stated that Mr. Fermie attested the will in her presence and in the presence of the testatrix and that Mrs. Vas was in a sound state of mind at the time of the execution of the Will. She was not cross-examined on that score. Indeed, it was the first defendant who called PW-1 for attestation and that statement was also not challenged in cross-examination. The above crucial aspects raise a strong presumption that Ex.P-1 is genuine document. Referring to the two statements pointed out by PW-1 in her statement that Mrs. Vas wrote the caption appearing above the signatures of the attesters, and that Mrs. Vas had written and signed the Will by the time they put their attestations, the trial court held that PW-1 has pointedly stated in chief-examination and also clarified in re-examination that they put their attestations only after Mrs. Vas. had signed the Will and the writing of the statement in the caption does not affect the execution of the Will, and is not serious discrepancy. The Court held that it was satisfied that the Will is duly executed and attested, and it was also established from the evidence that Mrs. Vas was in a sound state of mind when making out the Will the trial court also found that the attesters and the testator signed the Will in the presence of each other. Referring to the suspicious circumstances pointed out by the defence, namely, (1) the husband and son were not provided anything; (2) that the Will was attested by strangers and not by close friends; (3) that Mrs. Vas wrote the will on the eve of her operation, the trial court held. thus:
(1) The husband was aged 80 years and had his own
properties. The son was well settled and was in U.S.A.
ever since 1954. Mrs. Vas wanted to give her properties
to her three daughters only.
(2) PW-1, Mrs. Gadre was frequently staying in Terra
Vera and she was attached to Mrs. Vas, as is seen from
her conduct before and subsequent to the execution of
the Will and Mr. Fermie was also a permanent boarder in
Terra Vera, and at the time of the execution of the
Will, these two were the only permanent boarders in the
Terre Vera Hotel.
(3) 3rd defendant herself admitted that Mrs. Vas was
not having any serious ailment and the operation she
underwent was a simple one, and the deceased was active
till the very last. Coupled with the fact that it was
the 3rd defendant who found the Will in the drawer of
Mr. Vas, kept it with her, and later, handed over it to
DW-3, the trial court pointed out that there is
absolutely no suspicious circumstance surrounding the
will. Proceeding further, the trial court also observed
that the burden of proof is on the defence to show that
the Will was got up by undue influence by the plaintiff
and, it was not so shown. The plaintiff was not aware
about the existence of the Will, nor was Mrs. Vas in
position to be dominated by one of her daughters, the
plaintiff. On the other hand, the fact that the
testatrix gave her property in equal shares to her
daughters proved positively that she was not under any
undue influence. The plaintiff was not even present
when the Will was signed by Mrs. Vas and attested by
two attesters and the entire Will was in the own
handwriting of Mrs. Vas. These facts will show that no
undue influence, as alleged, could be exercised. There
was absolutely no material in the evidence of DW-1, DW-
2, DW-4 and DW-5, which will affect the genuineness of
the Will, Ex.P-1, executed by Mrs. Vas. 10. The High Court in the appeal filed by defendant 3 and 4, re-appreciating the evidence, the circumstances and the probabilities, formed "its own impression" about the evidence in the case, and "taking an over all picture of the entire case as revealed in the evidence" held that it was "constrained to observe that this case of the alleged Will is shrouded in suspicion". 11. We heard counsel. As stated in "The Law of Wills in India and Pakistan" by Mantha Ramamurthi, at page 81, the general principles governing the presumption of due execution and attestation, in the case of Wills are:-
"If a will appears on the face of
it to have been duly executed and
attested in accordance with the
requirements of the Act, the maxim
"omnia proe sumuntur rite esse
acta," applies, unless it is
clearly proved by the attesting
witnesses that the will is not in
fact duly executed. The Court of
Probate has long been accustomed to
give great weight to the
presumption of due execution
arising from the regularity ex
facie of the testamentary paper
produced where no suspicion of
fraud has occurred.
The maxim "Omnia Proe sumuntur
rite esse acta" is an expression in
a short form, of a reasonable
probability, and of the property in
point of law on acting on such
probability. The maxim expresses an
inference which may reasonably be
drawn when an intention to do some
formal act is established. In Blake
v. Knight Sir Herbert Jenner Fust
observed "Is it absolutely
necessary to have positive
affirmative testimony by the
subscribed witnesses that the will
was actually signed in their
presence. or actually acknowledged
in their presence ? Is it
absolutely necessary, under all
circumstances that the witnesses
should concur in stating that these
acts took place ? or is it
absolutely necessary, where the
witnesses will not swear
positively, that the Court should
pronounce against the validity of
the will. I think these are not
absolute requisites to the validity
of the will."
Consequently, "where the
evidence of attesting witnesses is
vague or doubtful or even
conflicting the Court may take into
consideration the circumstances of
the case and judge from them
collectively whether the
requirements of the Statute were
complied with; in other words the
Court may, on consideration of
other evidence or of the whole
circumstances of the case, come to
the conclusion that their
recollection is at fault, that
their evidence is of a suspicious
character, of that they were
willfully misleading the Court, and
accordingly disregard their
testimony and pronounce in favour
of the will."
(pages 81-82)
(emphasis supplied)
The author has also categorized the various instances where the maxim has been applied in different cases (1) absence of evidence ; (2) some attesters speaking for and some against the will; (3) attesters honest but mistaken and (4) attesters giving false evidence. 12. while the presumption in the case of ordinary Wills is as stated above, in the case of "holograph Wills", the presumption is all the more - a greater presumption. Ex.P-1 is a "holograph will". It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar (AIR 1960 Cal. 551 at P. 552) stated about such a Will, thus:-
"The whole of this Will was written
in the hand by the testator himself
in English. The handwriting is
clear and firm. The law makes a
great presumption in favour of the
genuineness of holograph will for
the very good reason that the mind
of the testator in physically
writing out his own will is more
apparent in holograph will than
where his signature alone appears
to either a typed script or to a
script written by somebody else."
(emphasis supplied) The writing of the Will and signature of the testator ar admitted. There is also due and proper attestation in accordance with the relevant statutory provisions. No suspicious circumstance appears on the face of the document, Ex.P-1. The Will appears to be moderate and rational. Viewed form the above angle, there is a great presumption - even bordering on actual proof of the due execution and attestation of the Will. 13. Defendants have urged a few suspicious circumstances and have alleged that the Will was executed by the undue influence exercised by the plaintiff. Notwithstanding the high degree of presumption available in the case of a holograph Will, which on the face of it. appears to be properly and dully executed and attested, have the defendants let in cogent evidence to off set the said presumption and/or have succeeded in proving the special plea set up by them, falls for our consideration. In our considered view, the answer can be only in the negative. 14. We were taken through the judgments of the Courts below and also the evidence of witness. We should say that the entire approach made by the high Court, the way it scanned the evidence with minute particulars, reappreciated the evidence, and substituted its "own impressions"’ were misconceived and misplaced. The High Court referred to the decisions of this Court laying down the principles to be borne in mind as to now a Will should be proved in Court of law, especially when there are suspicious circumstances surrounding the facts of the execution of the Will. Reference was made to the decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma, (AIR 1959 SC 443), Rani Purnima Debi and another v. Kumar Khagendra Narayan Dev and another (AIR 1962 SC 567), Shashikumar Banerjee and others v. Subodh kumar Banerjee and others (AIR 1964 SC 529), Ramchandra Rambux v. Champabai and others (AIR 1965 SC 354). Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another (AIR 1974 SC 1999) and Smt. Jaswant Kaur v. Smt Amrit Kaur and others (Air 1977 SC 74). The general principles which govern the proving of a Will are stated in the aforesaid decisions . Of the above, the decisions reported in Shashikumar Banerjee’s case (AIR 1964 SC 529) is by the Constitution Bench. Therein, paragraph (4), the law has been succinctly stated thus at page 531:
"The principles which governed the
proving of a will are well settled;
(see H. Venkatachala Iyengar v.
B.N. Thimmajamma, 1959 Supp (1) SCR
426 : (AIR 1959 SC 443) and Rani
Purnima Devi v. Khagandra Narayan
Dev, (1962) 3 SCR 195.( AIR 1962 SC
567). the mode of proving a will
does not ordinarily differ form
that of proving any other document
except as to the special
requirement of attestation
prescribed in the case of a will by
S. 63 of the Indian succession Act.
The mode of proving 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.
Where however there 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 testator’s 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
testator,s mind was not free. In
such a case the court would
naturally expect that all
legitimate suspicion should be
completely removed before the
document is accepted as the last
will of the testator. If the
propounder himself takes part in
the execution of the will which
confers a substantial 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.
(emphasis supplied) 15. In applying the above general principles to particular cases the nature of the Will, the pleadings of the parties in the case, facts admitted or proved and the presumptions available in law, will have to be carefully given effect to. The case of a "holograph Will’ which is admittedly in the handwriting of the testator, is a special case which will require a different approach in considering the evidence in the case, to find whether the Will has been duly executed and attested. The approach to be made in such cases has been stated by the Constitution Bench in Shashikumar Banerjee’s case, (supra) at page 532 paragraph (5). In that case, the court referred to certain undisputed preliminary facts as follows: The testator, a well-known wealthy lawyer, who died at the age of 97, had executed a Will when he has 93 years old. He had made provision for his heirs by executing a number of documents, and the Will referred to the remaining property. The Will was witnessed by two persons. The entire Will was in the handwriting of the testator, corrected in various places and corrections were initialled by him. It was in the handwriting of the testator, corrected in various places and corrections were initialled by him. It was admitted that the signature at the bottom of the Will was of the testator. The dispositions were very clear and detailed and it could not be said to be an unnatural document. There was no evidence to show that the propounders took any part in the execution of the Will. After stating these preliminary facts, the court stated the approach to be made in the case of a ’holograph Will’, thus :
"Further the fact that the will is
holograph will and admittedly in
the hand of the testator and in the
last paragraph of the will the
testator had stated that he and
signed the will in the presence of
the witnesses and the witnesses had
and had signed it in his presence
and in the presence of each other
raise strong presumption of its
regularity and of its being duly
executed and attested. On these
facts there is hardly any
suspicious circumstance attached to
this will and it will in our
opinion require very little
evidence to prove due execution and
attestation of the will. There is
no doubt about the genuineness or
the signature of the testator, for
it is admitted that the signature
at the foot of the will is his. The
condition of the testator’s mind is
also not in doubt and he apparently
had full testamentary capacity
right upto March 1947, even though
he was an old man of about 97 when
he died on April 1,
1947...............There is nothing
to show that the dispositions were
not the result of the free will and
mind of the testator. Further, the
propounders (namely, the
appellants) had nothing to do with
the execution of the will and thus
there are really no suspicious
circumstances at all in this case.
All that was required was to
formally prove it, though the
signature of the testator was
admitted and it was also admitted
that the whole will was in his
handwriting. It is in the
background of these circumstances
that we have to consider the
evidence of the two attesting
witnesses..................."
(emphasis supplied) 16. In the judgment under appeal, the High Court notice the aforesaid decision of this Court in Shashikumar Banerjee’s case (supra) and has quoted the following passages in the said case :
"In the case of SHASHI KUMAR
BANERJEE AND OTHERS -VS- SUBODH
KUMAR BANERJEE (AIR 1964 S.C. 529).
His Lordship Justice Wanchoo, has
laid down:..................Where
however there 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 the
Will as genuine.........."
"............. in the case of
SHASHIKUMAR BANERJEE AND OTHERS VS.
SUBODH KUMAR BANERJEE AND OTHERS-
(A.I.R. 1964 S.C. 529). Therein,
His Lordship, Justice Wanchoo, J.,
has observed in para 5 of the
judgment this :
"The entire Will is in the
handwriting of the testator
and has been corrected in
various places and the
corrections have been
initialled by the testator
.................On these
facts these is hardly any
suspicious circumstances
attached to this Will and it
will in our opinion require
very little evidence to prove
due execution and attestation
of the will." " After quoting the above truncated passages and without adverting at all to the crucial passages, indicating as how the evidence of the attesting witnesses should be evaluated, in the case of ’holograph wills’ (extracted hereinabove), the learned judges of the High court stated in our opinion, wrongly, that the facts of this case are entirely different and so, the appreciation of the evidence of the case is to he done on the "unique features" of each case. 17. We are afraid that the High Court failed to give effect to the strong presumption of regularity and due execution and attestation of the holograph will, in the instant case. Admittedly, the Will, Ex.p-1, is in the handwriting of the testator as spoken to by the 3rd defendant herself. The herself. The facts in this case in great measure conform to the broad facts and circumstances detailed in the case of "holograph will" in Shashikumar Banerjee’s (supra) In this case the 3rd defendant admitted in cross-examination that her mother, Mrs. Vas "was active till the last" and that "she used to go to mass every morning." She further stated that the Will is in the handwriting of the testator. She stated. "I see Ext.p-1. This is the will. It is entirely in my mother’s handwriting. I am fully acquainted with her handwriting . Ext.P-1(a) is the signature of my mother." The evidence of PW-1, one of the attesters, is categoric that the Will was attested by her and a co-attester in the presence of the testatrix and that the testatrix was in a sound state of mind at the time of execution of the Will. dW-3, Advocate by profession, stated -" I am acquainted with the signature and writing of Mrs. Vas (Testator). I see the Will Ext.P-1. the will, was signed and executed. By ex. P-1, all daughters have been given equal shares and the document cannot be said to be unnatural. In these circumstances, a strong or high degree of presumption of the regularity and of due execution and attestation of the Will, arose. As stated by this court in Shashi Kumar Banerjee’s case (supra), it is in this background, the evidence in the case including that of the attesting witnesses should have been examined and what was required was only to formally prove the Will, and very little evidence to prove due execution and attestation of the will, was alone called for. The High Court totally ignored the above vital aspects. On the other hand, the High Court opined that the facts of this case are entirely different from those of Shashikumar Banerjee’s case (supra), and the unique features should be scanned , in great detail. In the process, the High Court re-appreciated the entire evidence, through a microscope, as it were, and indulged in surmises and conjectures,
The question that arose for consideration in this case, is largely one of fact. the decision of which depended upon the appreciation of the oral evidence adduced in the case. The weight of importance that should be given to the finding of the trial judge who had occasion to watch the demeanor of the witnesses and assess their credibility and the restraints that should be observed by the Appellate Court in such Cases, have been stated by this Court in more cases than one, vide Sarju Prasad Ramdoe Saha V. Jwaleshwari Pratap Narain Singh and Others (AIR 1951 SC 120), Madhusudan Das v. Smt. Narayani Bai and Others (Air 1983 SC 114), etc. It need hardly be stated that the onus is on the appellant, to show that the judgment appealed against is wrong. It is for the appellant to show where where the assessment of the court below has gone wrong and rot merely seek a reassessment of the evidence. We regret to note that the High court in the instant case, has not at all borne in mind the above salient principles of law in re-appreciating the entire evidence in this case through a microscope, as it were, and drawing its own "inferences’ and "impressions". 18. We shall only quote a few passages form the judgment of the High Court to show how the approach of the High Court was palpably wrong, which vitiated the ultimate conclusion reached by it.
"Admittedly, Mrs. Vas was in her
63rd years of age at the time she
wrote out Exhibit P-1. It was on
the eve of her operation. She was
suffering form high blood pressure
and hospital records would show
that she was suffering form uterus
complaint for 4-5 years. It is
probable, therefore, that she was
in nervous tension on the date when
the Will was written out by her and
obviously, Mrs. preston was in a
similar operation, to successfully
dominate over Mrs Vas and prevail
upon her to write out the Will.
This circumstance cannot be viewed
in its isolation. It is to be
viewed with the other
circumstances. arising in this
case."
"That being so, it is normally not
expected of Mrs. Vas to execute a
Will, if at all, with out the
knowledge and consent of Mr. Vas in
this connection, the trial Court
has rightly observed that the form
of the will and the language used
would clearly indicate that the
draft was pre pared by a lawyer.
The trial Court however, has
further stated, that in all
probability, Mr. Vas. husband of
the testatrix, must have helped her
in getting the draft prepared and
that he must have know about the
execution of the Will by his wife
Mrs. Vas. Though at the first blush
it looks probable the evidence on
record does not support such an
inference."
"The defendants have examined D.W.1
Mrs. Susala Heredia, D.W.2 Mr.
M.A.J. Vs. Niak, D.W.3 Mr. George
D’Costa and D.W. 4 Mr. F.J.
Heredia, in addition to the
evidence of Miss Vera Vas. All of
them have specifically stated that
Mr. Vas told them that he was
unware of the alleged Will executed
by his wife and that it is his
daughter Mrs. joyce Preston who had
managed to get such Will attested
and planted in his chest drawer."
"If really Mrs. Vas executed a Will
and got it attested as if made out
by the propounder, it is probable
to expect that she would have kept
the Will with her husband Mr. Vas
who was named as one of the
executors in the Will."
"In the circumstances the sworn
statement of Vera Vas that she did
not know anything about the Will
till Mrs. Preston told her about
the Will after the death of her
mother is probable and believable
."
"..............the surrounding
circumstances discussed by us above
render it probable that the
incomplete Will was in her
possession and subsequently, after
getting the attestation done, she
induced Vera Vas to search for it
and after some days, she placed it
in her father’s chest drawer and
subsequently, when it was found by
Vera Vas, she rushed with the Will
and showed it to Mrs. Preston and
subsequently, told it to D.W.3, her
mother’s lawyer, to probate the
Will."
"It is in this context that we have
to appreciate the evidence of Mrs.
Gadre, the alleged attester of the
will."
"The submission of the learned
Counsel for the appellants that it
was Mrs. Preston who got the Will
written by her mother as per the
draft got pre pared by her, took
custody of it and got subsequently
the attestation of Mrs. Gadre and
one other witness, cannot be
brushed aside as groundless. The
strong and reasonable suspicion
arising this context is not cleared
by the propounder so as to satisfy
the Court has entirely missed to
appreciate this aspect."
"...........if really Mrs. Vas had
made a Will as per exhibit p-1,
nothing could prevent her form
changing the Will on form revoking
is. She kept quiet obviously
because there was no completed
will,. There cannot be any other
plausible reason of it."
"The learned Counsel rightly
pointed out that when she wanted to
execute a gift deed in favour of
her daughters, she approached D.W.3
M.D’Costa, an Advocate and got the
gift deeds written and registered
with his assistance. Besides, she
also told D.W.3 that she wanted to
make a Will. Hence, the fact that
she herself wrote out the draft of
the will and signed it would
further show that it was at the
importunity and pressure of her
daughter who, perhaps brought the
draft to her and that Mrs. Vas
copied it out though she was
cautious enough not to get it
attested."
"Thus, taking an over all picture
of the entire case as revealed in
the evidence, we are constrained to
observe that this case of the
alleged Will is shrouded in
suspicion.
(emphasis supplied) 19. We have already held that Ex.p-1 " holograph Will" and the facts of the resent case are substantially similar to the one in Shashikumar Banerjee’s case (supra). All that was required was to formally prove Ex.P-1 (Will). The evidence of PW-1, the attester, which has been accepted by the trial court, is categorize and she stated in chief examination thus:
"I know the petitioner. I had seen
her mother. I know her form 1958.
The mother of the petitioner was
running boarding & lodging house in
St. Marks Road. The name was "Terra
Vera" hotel. I stayed in her hotel
on many occasions approximately 2-
1/2 months each time, when I came
to Bangalore on holiday - During
June 1964. I was staying in that
hotel with my husband. At that time
I was asked to attest a Will
executed by the mother of the
petitioner. Miss Preimrose Mary Vas
executed that Will. her husband
E.J. Vas asked me to be present and
sign the Will. Mr. Vas, Mrs.
Primrose Vas myself and the other
attesting witness are Mr. Firmie
were present."
"I see Ex.P.1. It is the last Will
Mrs. Primrose Mary Vas the testator
has put her signature at Ex.P-1.(a)
in my presence. I have attested
Ex.P-1, Will, at Ex.P-1(b) the
other attester D.P. Fermie put his
attestation after my attestation in
my presence and in the presence of
the testator. The deceased testator
was perfectly fit mentally and
physically when she executed Ex.P-
1, Will. The entire Will Ex.P-1 is
in the handwriting of the testator
herself. The husband of the
testator herself. The husband of
the testator was also present when
the deceased executed of Ex.P-1.
The husband of the testator called
me to be present at the time of the
execution of Ex.P-1."
(emphasis supplied) Nothing was brought out in cross examination to discredit this witness. The attesting witnesses were frequent visitors to Bangalore and permanent boarders in hotel "Terra Vera" There was absolutely no cross examination on the various aspects stated by the witness regarding the due execution and attestation of the Will, as extracted hereinabove. The trial Court adverted to the above crucial aspects arising in this case as also the admission by the 3rd defendant that the Will is entirely in the handwriting of her mother, that it bears her signature and she found the will in her father’s drawer and handed over Ex.P-2, Will to D.W. 3, Advocate. This fact is also corroborated by D.W.3, advocate. The trial Court laid emphasis on such crutial aspects and held that the Will a holograph Will herein - was duly executed and attested and Mrs. Vas was in a sound state of mind when Ex.P-1, Will, was executed. The said finding is based on a proper application of the law and the unassailable evidence available in this case. So also, trial Court, after adverting to the pleas urged by the defence, held that there are no suspicious circumstances surrounding the Will and that there is no evidence to show that the plaintiff exercised undue influence over Mrs. Vas. Such finding based on proper application of the law and the evidence available in the case was reversed by the High Court by a totally wrong approach to the question and without giving effect to the "strong presumption" available in the case regarding the presumption of regularity and due execution and attestation of the will Ex.p-1. 20. We are, therefore, constrained to hold that the judgment rendered by the High Court under appeal, is totally erroneous and deserves to be set said, We hereby do so. The judgment of the High Court of Karnataka dated 11.7.1978 is hereby set aside and the appeal is allowed. The judgment of the trial court is restored. Since this litigation is between near relations, in the peculiar circumstances of this case, we pass no order as to costs.