Syamala Raghunathan v. Srinivasan Vatsala

1 Whether this Hon’ble Court has jurisdiction to try this Suit? Not pressed 2(a) Whether the plaintiff proves that the Will in question was executed by the testatrix as alleged by the plaintiff? Yes 2(b) Whether the Will was executed in accordance with law as alleged by the plaintiff? Yes

3 Does the defendant prove that the deceased was not of sound state of mind at the time of execution of the Will as alleged in paragraphs 3(a) and 4 of the affidavit dated 28-9-2005? No

4 Does the defendant proves that the alleged Will in question was executed under suspicious circumstances or is unnatural? No Sr. No.

ISSUES ANSWERS

5 Whether the defendant proves that the Will in question has been obtained under undue influence for the reasons and as alleged in paragraphs 3(a) to (p) of the affidavit dated 28-9-2005 read with the Defendant’s Advocate’s letter dated 3-9- 2007 furnishing further and better particulars?2 No

13. The burden of proving Issues 2(a) and 2(b) is on the Plaintiff. But the burden of proving Issues 3, 4 and 5 lies on the Defendant given her case in the Caveat.

14. It appears to me self-evident that Issues 2(a) and 2(b) should be addressed together. Indeed, Issue 2(a) is clearly subsumed in Issue 2(b).

15. Similarly, Issues 3, 4 and 5 will need to be dealt with together. The evidence for all these is not distinct but overlaps.

2 In the order framing issues, the learned single Judge noted that the Defendant had not raised the pleas of collusion or misrepresentation (originally transcribed as coercion or fraud, later corrected).

C. BACKGROUND FACTS

16. Kannamal was the third wife of Mr Justice N Rajagopala Ayyangar (born 1889, passed 8th November 1984). Justice Ayyangar had a daughter named Lalita from his first marriage. She lives in Bangalore. He had two children — a son, since deceased, and a daughter, Sumati, who now lives in Chennai.

17. During his lifetime, and after a successful practice at the Bar, Justice Ayyangar was a Judge of the Madras High Court from 1953 to 1959, a Judge of the Supreme Court of India from 1960 to 1964, then Chairperson of the Bakshi Ghulam Mohammed ( J&K) Inquiry Commission (1965–1967) and, finally, Chairperson of the Press Council of India from 1968 to 1976. Until 1979, Justice Ayyangar and Kannamal lived in Delhi. That year, they moved to Bangalore, and stayed there until 1982 when they moved to Chennai. Justice Ayyangar built a small house there, and the couple lived there until his passing in November 1984.

18. Kannamal was born around 16th April 1922 in the Thanjavur District of Tamil Nadu. She studied until the 9th standard, and though the medium of instruction was Tamil, she is said to have been to read, write and speak English reasonably well. In 1941, she married N Rajagopala Ayyangar, then a practicing lawyer in the Madras High Court. They had two daughters, the present Plaintiff, Syamala, the elder daughter, and the Defendant, Vatsala, the younger one. There was also a son, Srinivasan, but he passed away in Kannamal’s lifetime.

19. Both daughters married well. Syamala and Raghunathan were married in May 1960 in Chennai (then Madras). Raghunathan was himself a serving officer in the Indian Administrative Service, which he joined in 1959 as a direct recruit. He was allotted to the Maharashtra cadre. He had a lengthy career in the IAS and held different posts. When he retired in September 1994, he had risen to the post of Chief Secretary of the Government of Maharashtra. He also held posts in service of the Central Government.

20. Vatsala married R Srinivasan in 1966. They lived in Bangalore, and, by all accounts, R Srinivasan did well for himself. He served as the Managing Director of Widia (India) and, on retirement, took up consultancy.

21. Vatsala claims that after her father retired and her parents shifted to Bangalore, they took a place close to Vatsala’s and Srinivasan’s. At that time, Raghunathan was in the IAS and his job involved routine transfers. Besides, Raghunathan’s mother lived with them. Thus, Vatsala says, it was she who looked after the parents. After Justice Ayyangar passed, Kannamal stayed on in Chennai until 3rd December 1998. Vatsala says she frequently visited her mother here. Syamala could only visit occasionally.

22. Raghunathan’s mother died in 1997 and it is at this point that the narrative gets controversial. Vatsala says that Raghunathan and Syamala went and stayed with Kannamal in Chennai until 1999‘until Kannamal threw them out of her house’. No such thing happened, say Raghunathan and Syamala. I will return to this a little later to the extent necessary.

23. But this much at least is not in dispute: that on 3rd December 1998, Raghunathan and Syamala left Chennai. They travelled to Mumbai, stopping at Bangalore and staying with Vatsala en route. About a month later, on 9th January 1999, Kannamal was admitted to a hospital in Chennai, the Aswene Saundra Hospital and Research Centre. She was there for a day. She was discharged on 10th January

1999. She came to Bangalore briefly, and then returned to Chennai. At that time, Raghunathan was posted to Amravati. In January 2000, Kannamal took ill again. She was admitted to the same hospital on 26th January 2000. She was discharged on 29th January 2000. Once again, she went to Bangalore to stay with Vatsala. Apparently, she stayed there for several months at least until November/December

2000.

24. Vatsala says Kannamal was unwell and was being treated by one Dr Suresh Rao. At that time — November/December 2000 — Vatsala’s daughter and granddaughter came to Bangalore to visit from Ahmedabad. Vatsala’s son, too, arrived from the USA. Vatsala says her son wanted to meet his paternal grandparents, who were in a village near Tiruchirappalli. There was also, Vatsala says, an issue about repairs to the Chennai property. So, leaving Kannamal with her daughter and granddaughter in Bangalore, Vatsala, Srinivasan and their son travelled to Chennai and from there to their village, Parali, near Tiruchirappalli.

25. This is now the most proximate background to the Will. For Vatsala maintains that Syamala telephoned her to say that Raghunathan had spoken with Kannamal, and Kannamal had said she wanted to go to Mumbai with him. Here the narratives radically diverge. I will address the evidence and how it was placed a little later, for this is crucial.

26. There is, as we shall see, a handwritten certificate from Dr Rao on 1st January 2001. Apart from anything else, it clearly mentions or indicates a proposed travel by Kannamal to Mumbai. It was Raghunathan who got this note from the doctor — he had come to Bangalore, at Kannamal’s request he and Syamala say. Raghunathan and Kannamal came to Mumbai on 2nd January 2001.

27. The narrative is that she started writing the Will on 2nd January 2001. It is said to have been attested on 4th January 2011.

28. Kannamal died on 1st March 2003. She made no later Will.

D. ISSUES 2(A) AND 2(B): DUE EXECUTION OF

THE WILL

29. Section 63 of the Indian Succession Act, 1925 says:

63. Execution of unprivileged wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:— (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

30. The execution of any unprivileged Will has nothing at all to do with its contents. It has to do, quite simply, with the manner in which the document attains legal status as a testamentary writing. It has no particular form, nor any specific language. It has to be in writing, and it has to be signed or marked by its maker — something to indicate that it is the maker’s intent to constitute and effect it as a Will. Then comes Section 63(c), for a Will needs attestation. Again, this has nothing to do with the contents. There must be a minimum of two attesting witnesses. All they have to do is to see the testator sign or mark the will in his or her presence. They may see another person sign it on the testator’s behalf in the presence of the testator and at his or her direction. Or the attesting witnesses may receive a personal acknowledgement of the testator’s signature or mark (or that of another person). Then, at the testator’s request and in his or her presence, and in confirmation of having seen the testator sign, mark, etc., the attesting witnesses must themselves sign the document. All attesting witnesses need not sign at the same time. No particular form of attestation is needed.

31. Implicit in this is that the testator does the signing or marking voluntary or his or her own volition, without being forced or coerced. It stands to reason that this are all acts of cognition and sentience and, equally implicit is that the attesting witnesses must be able to reasonably say within the bounds of what a layperson may perceive that the testator possesses sufficient capacity and faculty: that he or she knew what he was about and did it on his or her own.

32. The law does not require a testator to be in the pink of health. If that were so, many of us would be utterly incapable of making wills (though perfectly capable of writing judgments).

33. Attestation has nothing at all to do with the contents of the Will. An attesting witness may be a perfect stranger to the testator.

34. These principles are far too well-settled to merit a lengthier discussion. With these in mind, I turn to the artefact itself, Kannamal’s Will. In doing so, I address the following questions: (a) Is the signature on the Will (and the initials where they appear) proved to be those of Kannamal? (b) Did the attesting witnesses see Kannamal sign the Will and did they, at her request, attest its execution and sign in confirmation and attestation of such execution?

35. Both must be proved. If they are, then Issues 2(a) and 2(b) have to be answered in the affirmative. This would discharge the Plaintiff’s burden of ‘proving the Will in its solemn form’.

36. Of course, the propounder must establish testamentary capacity. But, for convenience, I have dealt with this along with Issue No 3, where the burden is on the Defendant to show that Kannamal was not of sound and disposing state of mind, memory and understanding.

37. To be sure, the Will may yet be dislodged by the Defendant if she succeeds in proving even one of Issues 3, 4 and 5. But it is not the Plaintiff’s burden to prove the negative.

38. The Will is written on plain paper. The writing is unsteady and uneven, but one might reasonably expect that, given Kannamal’s age and the fact that she had been unwell. The lines slope off to the right. On the first page itself there are clearly deletions and interpolations. On page 2, while the writing continues in Tamil, and in the same uneven form, there are some words in English: “Bank Deposit”, “F”" etc. Page 3 has a scored out phrase. There is a signature “R Kannamal” at the bottom right, and a date “4-1-2001”. There is a second signature of R Kannamal with a line under it and the date “4- 1-2001” below the line.

39. Then there are four signatures. To the right is one with the words “Executed before me, she being in sound mind and good health.” Below that signature in brackets are the words “Dr S.L. Johri” and the date “4.1.2001”. To the left of that is the word in English“witness”. Below this is a signature“N Jayaraman”, with the date 4.1.2001 and, below that, in square brackets and capitals “[N JAYARAMAN]”. At the centre of the foot of the third page we see the word “Witness:-”, then a signature, below that a date “4.1.2001” and, in square brackets “[R C IYER]”. To the left, against the word “Witness:-” there is a signature with a line under it, the date “4.1.2001” under that line, then the words “Advocate & Solicitor”, and below that“(Dipti Rajda)”.

40. Overleaf, in four different hands we have the names and addresses of Dipti Rajda, Dr SL Johari (giving his qualifications and clinic address), RC Iyer and N Jayaraman.

41. Of necessity, the Defendant’s knowledge of any of this is absolutely nil. It is the Plaintiff who must prove each of these signatures and the making of them. The Defendant can, at best, attempt to show that the evidence of these signatures and this execution and its attestation is unreliable and unworthy of credence.

42. Raghunathan examined, in sequence, Dr Johari (PW-1), Dipti Rajda (PW-2), RC Iyer (PW-3), Narayanaswami Jayaraman (PW-4) and himself (PW-5). Raghunathan’s cross-examination closed on 13th February 2009.

43. Inevitably, the cross-examination of Raghunathan (PW-5) covers other areas as well. The evidence of PW-1 to PW-4 is limited to the execution and attestation of the Will.

44. To clarify: at this stage, I am not addressing any question of the contents of the Will. Vatsala has many things to say about the contents, and the deletions, etc. I will address those while taking up Issues 3, 4 and 5. For the purposes of Issues 2(a) and 2(b), I confine this discussion to execution and attestation. I Evidence of PW-1, Dr Sohanlal Johari

45. Dr Johari was about 75 years old at the time of his evidence affidavit. He had a clinic at Doctor House on Peddar Road. He held a MBBS Degree, and was a FRCS (Eng) and FRCS (Edinburgh). He began his practice in 1963, worked at Bombay Hospital from 1963 to 1990,m was a professor of surgery at Grant Medical College until his retirement in 1990, and also an honorary surgeon at the government GT Hospital from 1964 to 1990. At the time, he had an active private practice.

46. He said he knew Raghunathan and Syamala since 1975. He also knew Kannamal and Justice Ayyangar. In the last week of December 2000, Raghunathan told Dr Johari that he (Raghunathan) was going to Bangalore to fetch Kannamal as she wanted to come to Mumbai immediately. Raghunathan asked Dr Johari to take care of her when she came to Mumbai.

47. On 2nd January 2001, around noon — Dr Johari is fairly precise about this time — Raghunathan phoned him to say that he had brought Kannamal to Mumbai, and would Dr Johari please visit her. Dr Johari went to Raghunathan’s and Syamala’s home at Worli Sea Face a short while thereafter. He says Kannamal greeted him with warmth. He examined her. Her heart and blood pressure were normal. She was mentally alert. But she looked anaemic and dehydrated. He advised oral re-hydration with Electral powder and plenty of liquids and prescribed a Vitamin B-Complex syrup. He also advised routine blood tests. At that time, Dr Johari says, Kannamal herself showed him a medical note dated the previous day, 1st January 2001 of Dr Suresh Rao of Bangalore. The note did not, Dr Johari says, indicate any serious illness. There was no other medical report.

48. Dr Johari is a surgeon. Kannamal did not need surgical intervention. He advised Raghunathan to have some physicians see her to rule out any major illness.

49. Then Dr Johari visited Kannamal the next morning, 3rd January 2001. She said she had rested well. He examined her again and again found her heart and blood pressure to be normal. It was then that Kannamal said, according to Dr Johari, that she was preparing her Will and wanted him to be a witness to its execution the next day, 4th January 2001, at about 10:30 am. He agreed. Kannamal said Raghunathan would ask some others as well. Later that evening of 3rd January 2001, Raghunathan telephoned Dr Johari and asked him to come to Raghunathan’s residence at 10:30 am.

50. Dr Johari arrived at Raghunathan’s home shortly after 10:30 am on 4th January 2001. A young lady Dr Johari did not then know was already there, chatting with Kannamal in the drawing room. Kannamal introduced them: the lady was Ms Dipti Rajda, and Advocate & Solicitor and a friend of Kannamal’s granddaughter. To Ms Rajda, Kannamal said Dr Johari was her doctor. She then said two others, Mr Jayaraman and Mr RC Iyer were expected shortly, also to serve as attesting witnesses. Dr Johari did not know Mr Jayaraman but knew Mr Iyer. A few minutes later, Raghunathan received a phone call from Mr Jayaraman saying that he and Mr Iyer could be there only at around lunch. At this, since Dr Johari and Ms Rajda were there, Kannamal said she would prefer to complete the formalities. Dr Johari found Kannamal alert and cheerful. He conducted a routine examination, checking her blood pressure, pulse rate and heart. All were perfectly normal.

51. Then Kannamal showed Dr Johari and Ms Rajda two sheets of white paper, written in hand on three sides (the first sheet front and back, the second sheet on one side). Dr Johari said that Kannamal told him she had written this in her own hand in Tamil, of her own free will (as she had also said in the document itself) and now wanted to initial the corrections and execute the will in his and Ms Rajda’s presence as attesting witnesses. Dr Johari’s testimony is:

13. Thereupon, in my presence and in the presence of Ms. Rajda, the Testatrix initialled in English, the various corrections appearing in the three pages of the Will. Thereafter, she set and subscribed her signature in the English language and character - “R. Kannammal” on the right hand side at the foot of Page 3 of the testamentary paper; and below it she also wrote a few words in Tamil, and the date ‘4-1-2001’, followed by two more words in Tamil, at the end of the third page of the testamentary paper, which is in Tamil language and character (except Numbers, her initials, signature and portions which are in English), being her last Will, and Testament. Thereupon, at the request of the Testatrix and in the presence of the Testatrix and in the presence of Ms. Dipti Rajda, and below the signature of the Testatrix on the right hand side of page 3 and the Tamil word below it, I wrote in my own hand the following words “Executed before me, she being in sound mind and good health”, in English language and characters, on the right hand side of the said page 3, and set and subscribed my signature, name in capital letters in bracket, and date below it. …

15. Thereafter, in the presence of the Testatrix and in my presence, and at the request of the Testatrix, Ms. Dipti Rajda set and subscribed her signature, date, designation and name in bracket, in English language and characters, at the bottom of the left hand side of the third page as witness to the execution of the Will by the Testatrix and my attestation thereof.

16. Thereafter, in the presence of the Testatrix, both l and Ms. Dipti Rajda put our initials in English language and character, on the first page of the Will, and we also wrote out in English language and characters and in our respective hand on the last page, at the back of the third page, our respective names, designations, and addresses.

17. Now, after going through the certified copy of the Will, I confirm that the initials ‘RK’ occurring on the corrections in the three pages, are in the proper handwriting of the said Testatrix. I also confirm that the signature “R. Kannammal” on the right hand side followed by words in Tamil and the date in English “4-1-2001”, and again followed by two more words in Tamil, in the Will on Page 3, are in the proper handwriting of the said Testatrix. I confirm that the writing on the right hand side viz., “Executed before me she being in sound mind and good health /S.L. Johari (Dr. S.L Johari) 4-1-2001” is in my proper handwriting, thereby, witnessing the signature of the executant Testatrix. The portion on the left hand side containing the signature viz., “D Rajda, 4.1.2001”, and the writings, “Advocate and Solicitor (Dipti Rajda)” in English, is in the proper handwriting of the said Ms. Dipti Rajda. The portions on the last page viz., “1. Dipti Rajda Advocate & Solicitor (Lon) 913, Maker Chambers V, Nariman Point Mumbai 400021” are in the proper handwriting of Ms. Dipti Rajda. The other portion viz., “2. Dr S. L. Johari, FRCS (Eng) FRCS(Ed) FIC, 47/1345 ADARSH NAGAR, Prabhadevi, Mumbai 400

025. Clinic: 409 Doctor House, 14, Pedder Road, Opp Jaslok Hosp. Mumbai 400 026” is in my own handwriting. The same were written in the presence of all three of us. On Page 1 of the said document there are the initials of myself and Ms Dipti Rajda and the same were inscribed in the said document in the presence of the Testatrix and all of us.

18. At the time the said Testatrix so subscribed her signature “R. Kannammal” to the said Will as aforesaid, she was in good health, of sound mind, memory and understanding, and she made and published the same of her free will and pleasure.”

52. This testimony was reaffirmed in further examination-in-chief. Dr Johari produced the note dated 1st January 2001.

53. That Dr Johari knew Raghunathan was not denied; the crossexamination in this regard brought out nothing more except perhaps that Dr Johari treated Raghunathan’s father, often met Raghunathan and was consulted on family health issues including surgery. There is nothing so very remarkable about that. He came to know Raghunathan and Syamala after 1980. He also treated Justice Ayyangar, an answer elicited in cross-examination, which would show that he was not an utter stranger to Kannamal. He was also asked if he had previously treated Kannamal herself; and to this (entirely illadvised) question, Dr Johari again said yes, on and off, whenever she was in Bombay and had a medical ailment, he would treat her or advise her. On further cross-examination, he said she had mild anaemia and dehydration. The blood tests were routine. He was asked — again I do not know why — what other medical problems he was anticipating. Dr Johari answered“nothing much, but because she was of old age, to take abundant precautions,” he advised her to consult physicians. Strangely, Dr Johari was asked if he had seen Kannamal writing the Will or making the corrections. Quite correctly, he said he had not. He also confirmed that only he, Kannamal and Ms Rajda were present at the time. Raghunathan was preparing coffee in the kitchen. Later, he confirmed that Kannamal was moving around on her own when he called on her and she was not bedridden nor in a wheelchair. He denied the suggestion that Kannamal had not signed in the presence of either himself or Ms Rajda. He was asked why the two attesting witnesses had not signed page 2 (the reverse of the first sheet). His answer was that with the initials on one side of the first sheet, no one could replace only the second side — actually a good answer. Oddly enough, no case was put to Dr Johari that Kannamal did not sign the Will at all; the only suggestion was that she did not sign it in his presence, and which he denied.

54. The testimony of Dr Johari is, in my view, unassailable. II Evidence of PW-2, Ms Dipti Rajda

55. Ms Rajda’s evidence was that she knew Kannamal as the grandmother of her friend Daya. According to her, in the late afternoon of 3rd January 2001, Raghunathan told her that Kannamal had come to Mumbai the previous day to stay with him and Syamala, that Kannamal was preparing her Will, and that she wanted to execute it the next day, 4th January 2001 at 10:30 am. Ms Rajda says she was told that Kannamal desired she be a witness to the execution.

56. Pausing for a moment, I must note that this part of the testimony cannot be said to be excluded by the rule against hearsay. Ms Rajda can depose to what she heard; she just cannot depose to the correctness of what she was told and what she heard, or perceived with her senses (following the definition of‘fact’in the Evidence Act, 1872). But if what she was told can be proved aliunde, even by drawing a presumption under Section 114 of the Evidence Act, then Ms Rajda’s evidence is not excluded by Section 60 of the Evidence Act. The finest exposition of this principle is, of course, in the legendary Privy Council decision in Srimati Bibhabati Devi v Kumar the famous Bhoyal sanyasi case.

57. Ms Rajda agreed. She arrived at the Raghunathan residence at

7 Priya CHSL on Khan Abdul Gaffar Khan Road, Worli Sea Face on 4th January 2001 a little before 10:30 am. She met Kannamal, who was in the drawing room. Kannamal greeted her and they chatted about Daya. While they were there, Dr Johari arrived — thus 3 1946 SCC OnLine PC 30: (1945-46) 73 IA 246: (1947) 49 Bom LR 246. corroborating what he said. Kannamal introduced the two to each other. Raghunathan said that he had asked Mr Jayaraman and Mr Iyer, too, to attend as attesting witnesses. Ms Rajda did not know either of them. She confirms that a few minutes later, Raghunathan got a phone call and said that Mr Jayaraman and Mr Iyer would be delayed till around the lunch hour. At this, again in corroboration of Dr Johari’s testimony, Kannamal said she would like to proceed.

58. What followed is set out by Ms Rajda in paragraphs 6 to 12 of her written deposition.

6. Thereafter, after being examined by Dr. Johari, the Testatrix showed me and Dr. Johari, two sheets of white paper, written in hand on three sides. The Deceased told us in English, that this was her Will written in her own hand in the Tamil language, and after coming to Mumbai. The Deceased also said that she had written the same of her own free will, and that she had also stated so, in the Will. She now wanted to initial the corrections and execute the same.

7. That thereafter, in my presence and in the presence of Dr. Johari, the said Testatrix initialled in English, the various corrections appearing in the three pages of the Will and set and subscribed her name in English language and character — “R. Kannammal” — on the right hand side on Page 3 at the end of her writing at the foot of the Testamentary paper. Then she wrote a few words in Tamil, and the date. ‘4-1-2001’, followed by two more words in Tamil, below her signature. The will is in Tamil language and character (except Nos. and her initials, signature and portions which are in English), which is referred to in the Petition herein and marked Ex. “B” being her last Will and Testament.

8. That thereupon, the said Dr. S. L Johari, did at the request of the said Testatrix and in her presence and in the presence of each other all of us being present at the same time, inscribed in his own hand, below the signature of the Testatrix and the Tamil writing below it, on the right hand side of Page 3, of the testamentary paper, the words “Executed before me, she being in sound mind and good health” and set and subscribed his signature, name (in bracket end capital letters) and date, all in English language and characters, at the foot of the said testamentary paper as witness thereto.

9. That, thereupon at the request of the Testatrix, and in her presence and in the presence of Dr. Johari, I set and subscribed my signature, date, designation and name (in bracket) in English language and characters, at the bottom of the left hand side of the third page in token of my having witnessed the execution of the Will by the Testatrix, and also attesting to the attestation of the execution of the same.

10. That thereafter both Dr. Johari and I put our initials in English language and character, on the first page of the Will. Finally, we wrote out in English language and characters and in our own hand the fourth page, that is to say, at the back of the third page, our respective names, designations, and addresses.

11. That the signature “R. Kannammal” in English, on the right hand side at the foot of Page 3 of the Testamentary paper, the words, in Tamil, followed by the date in English and further followed by two more words in Tamil in the Will are in the proper handwriting of the said Testatrix. Below the Tamil word, and on the left hand side bottom of Page 3, of the Testamentary paper, l have signed as “Dipti Rajda” and added in my handwriting the date namely ‘4.1.2001’ and my designation namely ‘Advocate and Solicitor’. The portion on the right hand side viz., “Executed before me she being in sound mind and good health /S.L. Johari (Dr. S.L. Johari) 4-1-2001 is in the proper handwriting of Dr. S.L. Johari, thereby witnessing the signature of the executant, Testatrix. The portions on the last page viz., “1.Dipti Rajda Advocate & Solicitor (Lon) 913, Maker Chambers V, Nariman Point Mumbai 400021” are in my handwriting. The other portion viz., “2.Dr S. L. Johari, FRCS (Eng). FRCS(Ed) FIC, 47/1345 ADARSH NAGAR, Prabhadevi, Mumbai 400025. Clinic: 409 Doctor House, 14, Pedder Road, Opp. Jaslok Hosp. Mumbai 400 025” are in the handwriting of Dr. S.L. Johari: The same were written in presence of all three of us. We have also put our initials on Page 1 of the said document in the presence of the Deceased and each other.

12. That at the time the said Testatrix so subscribed her signature “R. Kannammal” to the said Will as aforesaid, she was of sound mind, memory and understanding, and to the best of my belief she made and published the same of her free will and pleasure.

59. In cross-examination, Ms Rajda said her signature was on the left bottom of the third page of the Will. She confirmed that the word “R Kannamal”above her signature was not there at the time. She also agreed that the alterations and other dates, and the Will itself, was not written in her presence.

60. To both PW-1 and PW-2 a question was put that they could not say to their personal knowledge that the Will had been dictated to Kannamal by Raghunathan, Syamala or some other person. Both agreed. But such a question in cross-examination is always dangerous, for simply by putting it, the cross-examiner assumes the burden of proving the correctness of what is suggested, viz., that the Will was dictated to Kannamal by someone else. It has to be so; otherwise such a situation is simply in the air and entirely inconsequential. No argument sans proof can be founded simply on such a question and an honest answer to it.

61. Ms Rajda confirmed that Raghunathan was in the kitchen at the time of execution and Syamal was resting as she was not feeling well.

62. Now Ms Rajda had also filed an affidavit dated 18th July 2003 accompanying the Petition. In paragraph 4 of this, she had said that she had signed below the signature of Kannamal. In her deposition in evidence, she said she signed on the left bottom of the document. The so-called contradiction was put to her. She said both statements were correct because her signature appeared below that of Kannamal, which was to the right hand side. She circled the portion in pencil.

63. Later, Ms Rajda was asked if the line in Tamil with the figures ‘4-1-2001’ on page 3 were made by Kannamal. She said it was done after the signature, in Ms Rajda’s presence and of Kannamal’s own accord. She agreed that this was not mentioned in her 2003 affidavit. Then, she too confirmed, as Dr Johari had, that her and Dr Johari’s initials were only on page 1, not on page 2. Ms Rajda said that Kannamal told her that since page 1 was initialled, it was not necessary for her to initial page 2. She was there not as a lawyer but as a friend.

64. Ms Rajda then confirmed, and this will go to testamentary capacity, that not only Raghunathan but Kannamal too had told her that Mr Jayaraman and Mr Iyer would also be witnesses.

65. I pause briefly to consider what might have been the answer to the two issues in hand had the Will been attested only by Dr Johari and Ms Rajda, given their depositions and cross-examination. I have no manner of doubt that neither witnesses has been impeached in the slightest. Both answered honestly and directly. Ms Rajda corroborated what Dr Johari said about the execution and attestation. The cross-examination of each was wholly ineffective and entirely futile. Some questions in cross-examination were decidedly illadvised, and the answers have worked to the disadvantage of the cross-examiner. Questions 30, 31, 39, 40, 60, 62, 77 and 78 to Dr Johari stand out as particularly inapposite in any cross-examination.

66. The same suggestion about the Will being dictated by someone else was put to both; and both attesting witnesses honestly answered that they could not say to their personal knowledge. But if this is a suggestion in a question in cross-examination, a court is surely entitled to demand that the party putting the suggestion must establish and prove its correctness. That was never done.

67. But as it happens, there is more. There were two more witnesses, though later in time, and I turn now to those. III Evidence of PW-3, Mr RC Iyer

68. Rajaraman Chandrasekharan Iyer, PW-3, was a former Additional Chief Secretary to the Government of Maharashtra, and a former Upa-Lokayukta. Undoubtedly, he knew Raghunathan and Syamala. He says so; their association and friendship was of three decades’ standing. He knew Kannamal, too, and the late Justice Ayyangar.

69. Mr Iyer’s Affidavit in lieu of Examination-in-Chief is compact and precise. In view of the foregoing discussion, it is only necessary to summarize it not set it out at length. Mr Iyer confirmed that Raghunathan called him the previous evening, 3rd January 2001, and asked him to witness the execution of Kannamal’s Will. He was told that Mr Jayaraman, Dr Johari and Ms Rajda would be attesting witnesses too. He knew Mr Jayaraman and Dr Johari, not Ms Rajda. The next day, he was held up with urgent work. He asked Mr Jayaraman to telephone Raghunathan that they would be delayed. Mr Jayaraman and Mr Iyer reached the Raghunathan residence at about 12:45 pm. Kannamal greeted them. She spoke about Justice Ayyangar’s association with Mr Jayaraman’s grand uncle Vaidyanatha Aiyar and how Justice Ayyangar had represented him in the Madras High Court in the mid-forties, and also visited their home in Chennai. Then Kannamal herself said, Mr Iyer deposed, that because of the delay she had executed the Will and had it attested by Dr Johari and Ms Rajda, but wanted to reiterate her subscription to the Will as she wanted Mr Iyer and Mr Jayaraman too to attest it.

70. This brings us to what is dispositive. For Mr Iyer deposed that he and Mr Jayaram were shown the already executed Will. It had her signature and those of Dr Johari and Ms Rajda, and the initials. In Mr Iyer’s and Mr Jayaraman’s presence, Kannamal signed the Will a second time. Then Mr Iyer signed, followed by Mr Jayaraman. They too inscribed their names and address on the last page (the reverse of sheet 2).

71. The cross-examination from question 181 to question 237 is wholly immaterial. Nothing is to be drawn from it; not a single thing. In Q.233, another suggestion was put to Mr Iyer that he could not say from personal knowledge if the Will was coerced; evidently, the burden of proving that is on the Defendant (and covered by issues 3 to 5). IV Evidence of PW-4, Mr N Jayaraman

72. Mr Narayanaswami Jayaraman too was a former Additional Chief Secretary to the Government of Maharashtra, a former Upa- Lokayukta and, at that time, a practicing Advocate. His Affidavit in lieu of Examination-in-Chief follows the same lines as that of Mr Iyer. There is no deviation at all. His cross-examination, like that of Mr Iyer, is ineffective in its entirety. Oddly enough, he was asked if he found Kannamal weak. He firmly answered in the negative. She was seated on her bed. Another suggestion followed that she was not well and was under treatment. Mr Jayaraman denied this fully, and said she appeared normal. V Evidence of PW-1, the original Plaintiff, N Raghunathan

73. I come now to the evidence of the Plaintiff in regard to the execution and attestation of the Will. I will not be discussing its contents here — that comes later — for there is much Raghunathan has to say in that behalf and it speaks to the remaining issues, not Issues 2(a) and 2(b). This includes the circumstances in which Kannamal came to Mumbai on 2nd January 2001.

74. We pick up the narrative on 2nd January 2001. This is the subject of paragraph 28 and later paragraphs of Raghunathan’s first Affidavit in lieu of Examination-in-Chief, affirmed on 6th February

2008. He was already in Bangalore from 1st January 2001 (of which more a little later) and he and Kannamal flew to Mumbai on 2nd January 2001. He confirms that Dr Johari examined Kannamal on 2nd January 2001 and found her suffering from moderate dehydration. He says that she was later examined by two physicians and was treated for hypothyroidism. He says that in the afternoon of that very day, Kannamal said she wanted to write and executed a new Will. Raghunathan says he told her there was no need; her earlier one was good enough. He goes on to say that she wrote the Will unattested over two days. On 3rd January 2001, when Dr Johari came to see her again, she said to Dr Johari that she was making her Will and wanted to execute it the next day. Kannamal asked Dr Johari to be a witness. Later, Kannamal asked Raghunathan to ask Mr Jayaraman and Ms Rajda to be attesting witnesses the next morning (and to remind Dr Johari). Raghunathan says Kannamal identified and named these three witnesses. He contacted them all; they all agreed. Mr Jayaraman, PW-4, suggested the name of Mr RC Iyer, PW-5 (then the sitting Upa-Lokayukta). Raghunathan invited him too, and he agreed. Then, in paragraph 32, Raghunathan confirms that Ms Rajda arrived first, followed by Dr Johari. Kannamal introduced the two to each other. At about 10:40, Raghunathan got a call from Mr Jayaraman saying he and Mr Iyer would be delayed. Then he says the Will was executed — the first execution — by Kannamal and attested by Dr Johari and Ms Rajda. He confirms that Mr Jayaraman and Mr Iyer arrived at 12.45 pm. This is when the Will was executed for a second time, and attested by the two gentlemen.

75. Then Kannamal asked for the Registrar to be called to the residence. Raghunathan made the request, and the Sub-Registrar came home with his staff two days later at about 11:45 am on 6th January 2001. Kannamal put the Will in an envelope in the Subcopy of the envelope is in evidence. It was sealed and the Sub-

76. As far as execution and attestation go, this is the evidence from the Plaintiff’s side. There was an length further examination in chief, and then cross-examination began on 14th October 2008. Initially, he was asked about his acquaintance with the attesting witnesses. That is not material for the purposes of execution and attestation, for we are concerned with the act of execution and the act of attestation of execution. Raghunathan was shown the Will on 19th November 2008, just prior to question 485. He said he had seen the document but not read it until the sealed packet was opened by the Sub-Registrar of Assurances on 8th May 2003. Then he was asked if he knew about the execution of the document, and if so when. He answered that it was executed on 4th January 2001. He knew of its execution that very day. Immediately, he was asked how he knew of the execution of the Will. He said: 487A. I brought the deceased to Mumbai on 02.01.2001 as I have already stated in my affidavit. She started writing her Will on 02.01.2001. On 03.01.2001, when Dr. Johari had come to examine her, she told him that she was writing her Will and that she wanted to execute the same on 04.01.2001 and requested him to be present next morning to attest the same. In the afternoon, the deceased also directed me to request Dipti Rajda and Shri N. Jayaraman to come over to my residence on the morning of 04.01.2001 to attest the Will. When I spoke to Mr. Jayaraman on telephone, he requested me to request Mr. R.C. Iyer to also come so that Mr. Jayaraman could come to Worli from Churchgate in the car of Mr. R.C. Iyer. That is how I came to know that she wished to execute the Will on 04.01.2001.

77. What follows is important. Raghunathan agreed that Kannamal had not asked for PW-4, Mr Iyer, to come to the house. He maintained what he said in his evidence, but added that Kannamal said she had no objection. He was asked where he and Syamala were in the house on 4th January 2001 and where Kannamal was. He said she was in her own room, the second bedroom in an 1100 sq ft apartment. The remaining questions ran like this:

492. Where was the deceased on 04.01.2001?

494. In which part of your house was the deceased at the time when allegedly Ex.P-1 was executed?

495. Would it be correct to say that your above answer was on the fact that you had personally seen what you had described above?

496. Where were Mr. R.C. Iyer and Mr. Jayaraman on 04.01.2001, when according to your previous answer, Dipti Rajda and Dr. Johari were at your house?

12.45 p.m. when the deceased re-executed the Will. As such, Mr. Jayaraman and Mr. R.C. Iyer were not in my house, when the deceased executed the Will in the presence of Dipti Rajda and Dr. Johari and in each others presence.

499. Was your wife in a position to move around in the house between 2nd and 5th January 2001?

503. In paragraph 34 of your Affidavit of Evidence dated 06.02.2008, you have said that at 12.45 p.m. on the same day, both Shri N. Jayaraman and Shri R.C. Iyer arrived at my house. Who was present at that time?

504. In which part of the house was the deceased at 12.45 p.m. when both Shri N. Jayaraman and Shri R.C. Iyer arrived at the house?

505. Would it be correct to say that it was you who had called R.C. Iyer to witness the execution of the alleged Will?

506. After Dipti Rajda and Dr Johari left your house, did you see the alleged Will?

A. NO. 507. Did you ask the deceased to give you the said document to read?

A. NO. 508. After R.C. Iyer and Jayaraman left, did you see the alleged Will?

509. Did you ask at that time the deceased to give you the said alleged Will to read?

A. NO. 510. To your knowledge, did your wife ask the deceased to give her the alleged Will to read?

517. I put it to you that Dr. Johari and Dipti Rajda did not come to your place on 04.01.2001.

519. I put it to you that on 04.01.2001, neither. Shri Jayaraman nor Shri R.C. Iyer visited your house.

520. Would it be correct to say that you had not seen the deceased, Jayaraman and R.C. Iyer putting their signatures on the alleged Will in the presence of each other?

521. Therefore, do I take it that barring leaving for making of coffee, you were all throughout present in that room?

522. Did you personally see them putting their signatures?

523. Did you see what were they writing?

524. Therefore, do I take it that you would not be able to say that whether they put signature on the alleged document or had written something on the alleged document?

525. Therefore, do I take it that on 04.01.2001, you were not in a position to know that the alleged signatures on the alleged Will were put on that day itself?

526. I put it to you that no such signatures were put on 04.01.2001 and your story that R.C. Iyer and Jayaraman were present along with the deceased 04.01.2001 is false.

78. Clearly, the evidence of PW-5, the original Plaintiff Raghunathan, has not been disturbed in the slightest on the matter of execution and attestation of the Will. Indeed, some of the suggestions are exceedingly peculiar. To put a case that the attesting witnesses were not there is to suggest that the Defendant can prove they were elsewhere. This kind of assumption of an evidentiary burden in always hazardous in framing questions in cross-examination. Far from dislodging the Plaintiff’s case, this cross-examination considerably substantiates it. VI The Defendant’s Evidence on Issues 2(a) and 2(b)

79. This discussion would be incomplete without a look at the pleadings and the evidence of the Defendant on the execution and attestation of the Will. Again, at the cost of repetition, this is not a discussion about the contents of the Will, its form, its corrections or alterations.

80. What is odd about Vatsala’s evidence as DW-1 is that in Questions 582 and 583, she denied Kannamal’s handwriting and signature(s) on the third page. She examined as DW-2, a handwriting expert, one Meghana Sahu. Her report is at Exhibit D-17. In this, she opined that the signatures on the Will were not those of Kannamal. In a typescript document, this may have been of consequence; but the report says nothing at all about the handwriting in the rest of the Will, and it is, after all, a holograph Will. She did not answer the question as to whether the handwriting would be relevant to her opinion on signature, and there was no case that the person who signed the Will was not the person who wrote it in hand. Further, the signature on the envelope was admitted. This was lying with the Sub Registrar since 6th January 2001 or thereabouts. It considerably narrows the field of focus. There was some discussion about the expert’s credentials — her claim to having done 1000 opinions after a one year course for determining traits, not comparison, and no training in criminology and forensic science — but I propose to let that pass.

81. Importantly, she was not asked to examine the handwriting of Kannamal on the will itself. Her brief was restricted to the signature. Thus, other than Vatsala’s say-so that the handwriting was unreliable (which I will deal with later), there is no challenge to the handwriting of the will.

82. Vatsala’s conduct was baffling. Before she engaged Meghna Sahu (DW[2]), Vatsala had briefed another handwriting expert. That person had examined the will, and submitted a report. But Vatsala never produced that report. The name of that expert was never disclosed. The expert was not produced in cross-examination. He or she was not shown to be unavailable to give evidence. I am left to speculate as to the reasons, but it seems to me reasonable to say that this report, had it been produced, would have been adverse to Vatsala.

83. Ms Sahu’s cross-examination shows up her lack of familiarity with a fundamental concept — natural variations in signing. She was confused and her answers were plainly incorrect. For instance, at one point she claimed that the same components were simultaneously basic characteristics and natural variations. They could not be. Her technique was decidedly odd — to rely on photocopies and to not take photograph oneself is hardly sufficiently scientific. She did not know about the required enlargement scales or the degree needed.

84. But what is dispositive of this part of the evidence is the admitted signature A[2], the one Kannamal put on the envelope deposited with the Sub-Registrar of Assurances. The envelope was in evidence. The moment this signature was ‘admitted’, the envelope itself was admitted; but more still, for no one ever argued that Kannamal mindlessly deposited an empty envelope with the Subanything other than the will being propounded. The admission of the signature on the envelope axiomatically leads to the conclusion that the present disputed will was within it; therefore, the artefact of the will existed; and since the envelope was deposited by Kannamal with the Sub-Registrar with this very will within it, there could survive no case of the signatures on the will not being those of Kannamal. This inherent inconsistency in the defence is never resolved. It would amount to an absurdity: that someone else forged Kannamal’s signature, then Kannamal herself put the forged will in the envelope, gave it to the Sub-Registrar and herself signed that envelope.

85. Some attack was mounted independently on the signatures on the will, overlapping the case of mental capacity, undue influence etc. In the second Affidavit in Support of the Caveat, in paragraph 3 (page 47), Vatsala questioned Kannamal’s signatures, but not the handwriting in the will. In later paragraphs, she assailed some corrections in the will. In paragraph 8, she said, rather ill-advisedly, that— “in some part the Will has been written by someone else …”

86. But this is surely an admission that, even if true, the rest was written by Kannamal. That passage then makes another sideways leap, for it argues that “it is thus clear that the Will is not written or executed by the testator herself.” No such thing is clear, for the assertion is on the basis that part of the will was written by another. It was thus emphatically not Vatsala’s case that no part of the whole will was in Kannamal’s handwriting. The corrections in the will are immaterial. They do not alter the dispositions. This is yet another failure in the cross-examination, i.e., the failure to distinguish between a material and an irrelevant alteration. A change or alteration that changed a bequest, or the name of the legatee, for instance, would be material. But changing a word here or there is not. It must follow that the failure to challenge the handwriting on the will is fatal to the Defendant’s case. Instead of creating a doubt about the will, it does the reverse — it generates a fallacy. For, if a person is shown to have written something as an expression of intent, then that person might reasonably be supposed to have signed it, and that ends any case on forgery. The want of some initials against some changes pales into inconsequence for the same reason — the changes or alterations are trivial. Worse yet, Raghunathan translated every so-called alteration or discrepancy in his Affidavit in lieu of Examination-in- Chief. He was not cross-examined on this at all. VII Findings on Issues Nos 2(a) and 2(b)

87. In Joyce Primrose Prestor v Vera Marie Vas,[4] the Supreme Court had before it a case of a holograph will. It was written by the testatrix herself — as here, and this is why I say that the absence of any expert evidence on the handwriting of the Will is crucial. The Supreme Court held that a greater presumption attaches to such a Will being regularly executed. Then, the propounder has only to formally prove the will, for which very little evidence is needed. A rebuttal of that evidence needs strong, cogent evidence. The approach had to be that enunciated by a Constitution bench in Shashi Kumar Banerjee v In paragraphs 15, 17 and 18 of Joyce Primrose Prestor, the Supreme Court held:

15. 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: 64 CWN 576] (AIR Cal 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 a holograph Will for the very good reason that the mind of the testator in physically writing out his own Will is more apparent in a 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 are admitted. There is also due and proper attestation in accordance with the relevant statutory provisions. No 5 AIR 1964 SC 529. suspicious circumstance appears on the face of the document, Ex. P-1. The Will appears to be moderate and rational. Viewed from the above angle, there is a great presumption — even bordering on actual proof of the due execution and attestation of the Will.

17. We were taken through the judgments of the courts below and also the evidence of witnesses. 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 how a Will should be proved in a 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: 1959 Supp (1) SCR 426], Rani Purnima Debi v. Kumar Khagendra Narayan Deb [AIR 1962 SC 567: (1962) 3 SCR 195: (1962) 2 MLJ (SC) 27], Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529], Ramchandra Rambux v. Champabai [AIR 1965 SC 354: (1964) 6 SCR 814: 66 Bom LR 486], Surendra Pal v. Dr (Mrs) Saraswati Arora [(1974) 2 SCC 600: AIR 1974 SC 1999] and Jaswant Kaur v. Amrit Kaur [(1977) 1 SCC 369: AIR 1977 SC 74]. The general principles which govern the proving of a Will are stated in the aforesaid decisions. Of the above, the decision reported in Shashi Kumar Banerjee case [AIR 1964 SC 529] is by the Constitution Bench. Therein, in paragraph (4), the law has been succinctly stated thus at p. 531: “The principles which govern the proving of a Will are well settled; (see H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443: 1959 Supp (1) SCR 426], and Rani Purnima Debi v. Khagendra Narayan Deb [AIR 1962 SC 567: (1962) 3 SCR 195: (1962) 2 MLJ (SC) 27]. The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of 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 indications 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 benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant a probate, even if the will might be unnatural and might cut off wholly or in part near relations. …” (emphasis supplied)

18. 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 Shashi Kumar Banerjee case [AIR 1964 SC 529], at p. 532 paragraph (5). In that case, the Court referred to certain undisputed preliminary facts as follows: The testator, a wellknown wealthy lawyer, who died at the age of 97, had executed a Will when he was 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 the 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 a holograph Will and admittedly in the hand of the testator and in the last paragraph of the Will the testator had stated that he had signed the Will in the presence of the witnesses and the witnesses 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 of 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 up to March 1947, even though he was an old man of about 97 when he died on 1-4-1947. … 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 added)

88. At this stage, it would be useful to consider Section 68 of the Evidence Act.

68. Proof of execution of document required by law to be attested.— If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

89. This tells us that at least one attesting witness must prove the execution of the document. Once that is done, the execution of the document requiring attestation is proved. This has nothing at all to do with proof of the contents of the document; and in a Will of which probate or Letters of Administration with Will Annexed is sought, the Will is to be proved in its ‘solemn form’: testamentary capacity and the due execution according to Section 63.

90. I will come to the other issues immediately next, but on the simple aspects of (a) the handwriting of the Will itself; (b) the signatures on the Will in its execution; and (c) the signatures of the attesting witnesses, I must conclude that there is nothing at all on the record before me that would persuade me to hold that the Will was not written by Kannamal in her own hand, that she did not sign it when it is said she did, and that her signature was not (twice) executed by the two pairs of executors. The cross-examination has been entirely ineffective in this regard. To hold against the Plaintiff, one would have to disbelieve all four attesting witnesses and the Plaintiff himself. There is nothing on the record to justify such a conclusion.

91. It is settled law that the evidence of an expert has to be approached with caution. It is seldom in itself dispositive of a question or an issue.

92. It is settled law that the evidence of a handwriting expert, or, for that matter, any expert, is not necessarily conclusive. A Court must decide from case to case what weightage is to be given. In Ramkrishan Ganpat Futane & Ors v Mohammad Kasam & Ors,[6] this court held that a comparison of handwriting as a mode of proof is very hazardous and inconclusive. The Supreme Court in Magan Bihari Lal v The State of Punjab[7] held that under Section 45 of the Evidence Act a handwriting expert’s opinion cannot form the sole basis of a conviction. The Supreme Court said that such expert opinion must be received with caution; particularly that of a handwriting expert. It went on to say that it is unsafe to treat the opinion of a handwriting expert as a sufficient basis for conviction, but it certainly may be relied upon when supported by other items of internal and external evidence. An expert’s evidence of handwriting is never conclusive. It 6 1972 SCC OnLine Bom 137: AIR 1973 Bombay 242.

93. Accordingly, I answer Issues 2(a) and 2(b) in the affirmative.

E. ISSUES 3, 4 AND 5

94. These three issues must be divided into component parts; as framed, they are very broad, and the evidence has travelled a great distance. While discussing them, I have chosen to group them slightly differently. (a) Soundness of mind also speaks to testamentary capacity; mental and physical health, infirmity, and incapability of making a testamentary disposition. (b) ‘Suspicious circumstances’ and being ‘unnatural’ are two different things. The former is about surrounding circumstances that, if proved, would not permit a judicial mind to accept the genuineness of the Will as

8 Ishwari Prasad Mishra v Md. Isa, 1962 SCC OnLine SC 88: AIR 1963 SC 1728: (1963) 3 SCR 722; Shashi Kumar Banerjee v Subodh Kumar Banerjee, supra. Fakruddin v State of MP, 1966 SCC OnLine SC 55: AIR 1967 SC 1326; Smt Bhagwan Kaur v Shri Maharaj Kishan Sharma & Ors, (1973) 4 SCC 46; State of Maharashtra v Sukhdev Singh & Anr, (1992) 3 SCC 700; S Gopala Reddy v State of Andhra Pradesh, (1996) 4 SCC 596. being the voluntary expression by the maker of it of her true intentions.

(c) Being unnatural speaks to familial relations, that is to say, to showing that there was no cause for the testator to cut out those who she would not ordinarily — and in this case, in past wills, had not — cut out from her testament.

(d) Undue influence is an altogether different matter. It has elements of coercion. The task is to show that the testatrix was, if not actually coerced, then at least so mentally dominated that she made a will against her true wishes. II Legal Principles

95. I choose to start with the governing legal principles. These must serve as a guide to the appreciation of evidence, for they tell us what a Court should look for, and how it should approach such disputes. There is no place for idle casuistry here; there is nothing to be gained by it.

96. A logical starting point is the locus classicus, H Venkatachala Iyengar v BNThimmajamma, the Supreme Court decision of 1958 that is still cited to this day. What came up to the Supreme Court was an appeal in a suit. The appellant was the plaintiff. He said he was the sole executor of a will made by one Lakshmamma. He sought a declaration that Lakshmamma owned the properties mentioned in the schedule attached to the plaint and was therefore entitled to make a testamentary bequest of them, and he sought consequential reliefs purporting to give effect to the bequests in the will he propounded. The claim was resisted by the 1st respondent. The appellant was the adopted son of one Annaji Iyengar. The 1st Respondent was the widowed daughter-in-law of one of Annaji’s daughters. The 1st respondent denied the claim and the will. The trial court held for the plaintiff/appellant. The High Court reversed in appeal. It is in this context that the Supreme Court said, in paragraphs 17 to 22:

17. The High Court, on the other hand, has taken a contrary view. The High Court thought that the evidence adduced by the appellant to prove the execution of the will was not satisfactory. It then examined the said evidence in some detail, criticised the discrepancies appearing in the said evidence, considered the probabilities and concluded that, on the whole, the said evidence would not justify the finding that the will had been duly executed by the testatrix. The High Court also thought that the appellant’s version about the instructions given by Lakshmamma to him in the matter of the execution of the will was highly improbable; and, according to the High Court, the whole evidence of the appellant appeared to be unsatisfactory. The High Court then considered the question of onus and observed that since the appellant’s sons had received a substantial benefit under the will and since he had taken a leading part in its execution, the onus was heavy on him to remove the suspicions attending the execution of the document and to establish that Lakshmamma had really understood its contents, had approved of them and had put her signatures on it when she was in a sound and disposing state of mind. It appears that the High Court also felt that the dispositions made by the will were unnatural and improbable; in particular it took the view that since the appellant had come into the family of Annaji by adoption it was very unlikely that his sons should have received such a substantial benefit under the will. In fact the judgment of the High Court appears to indicate that The High Court was inclined to hold that the testatrix may not have been in a sound and disposing state of mind at the material time. It is on these findings that the High Court reached its final conclusion that the appellant had failed to prove the due and valid execution of the will.

18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word “conscience” in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.

97. This was reaffirmed in Rani Purnima Debi v. Kumar Khagendra and Ramchandra Rambux v Champabai.10

98. In Surendra Pal v Dr (Mrs) Saraswati Arora,11 the Supreme Court considered the questions of suspicious circumstances, undue 9 AIR 1962 SC 567. 10 AIR 1965 SC 354: (1964) 6 SCR 814: 66 Bom LR 486.

7. The propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator’s free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. (See H. Venkatachala lyengar v. B.N. Thimmajamma [AIR 1959 SC 443: 1959 Supp (1) SCR 426: 1959 SCJ 507] and Rani Purnima Devi v. Kumar Khagendra Narayan Dev [AIR 1962 SC 567: (1962) 3 SCR 195: (1962) 1 SCJ 725] ) In the latter case this Court, after referring to the principles stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It has been further pointed out that 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 which may be unnatural or unfair or improbable when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga [AIR 1924 PC 28: 80 IC 777: 26 BLR 579] support the above proposition. Mr Ammer Ali observed at p. 33: “It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the Will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case.” In the light of what has been stated if the various requirements of a valid Will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga’s case at p. 33: “A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition.”

14. Apart from general considerations emerging from the nature of a Will and the circumstances which not infrequently surround the execution of it, there are other matters which are peculiar to the times and the society and perhaps even to the person making the Will and his or her family. Inferences arising from relationships between a testator and a legatee are certainly so dependent upon the peculiarities of the society or community to which the testator and the legatee belong, their habits and customs, their values, their mores, their ways of thinking and feeling, their susceptibilities to particular kinds of pressures, influences, or inducements that it seems very difficult to reduce them to a general rule applicable at all times and everywhere so as to raise a presumption of undue influence from a particular type of relationship. The only kinds of relationship giving rise to such presumptions are those contemplated in Section 111 of the Evidence Act, Any other presumption from a relationship must, to be acceptable, be capable of being raised only under Section 114 of the Evidence Act. Such presumptions of fact are really optional inferences from proof of a frequently recurring set of facts which make a particular inference from such facts reasonable and natural. If a particular situation arising from a set of facts, which may raise a presumption elsewhere, is exceptional or unusual here, there could be no question here of applying a presumption arising from a common or natural course of events. A suggested inference of undue influence would then be a matter of proof on the particular facts of the case before the Court. This, we think is the correct legal position here.

99. The testamentary jurisdiction is one of caution and circumspection. It is not a jurisdiction of suspicion. In Adivekka & Ors v Hanamvva Kom Venkatesh & Anr,12 the Supreme Court explained:

26. In Rabindra Nath Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459] wherein reliance has been placed by Mr Mahale, the circumstances preceding the execution of the will were taken into consideration. This Court in the factual matrix obtaining therein opined: (SCC p. 462, para 8)

27. We may, however, notice that in B. Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449: (2006) 11 Scale 148] this Court upon considering a large number of decisions opined that proof of execution of will shall strictly be in terms of Section 63 of the Succession Act. It was furthermore held: (SCC p. 456, para 15) “15. It is, however, well settled that compliance with statutory requirements itself is not sufficient as would appear from the discussions hereinafter made.” It was observed: (SCC p. 458, para 19) “19. Yet again Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the court and capable of giving evidence.”

28. It was emphasised that where there are suspicious circumstances, the onus would be on the propounder to remove suspicion by leading appropriate evidence stating: (SCC pp. 459-60, paras 22-25) “22. … However, having regard to the fact that the will was a registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not (sic) know well the contents of the will and in sound disposing capacity executed the same.

23. Each case, however, must be determined in the fact situation obtaining therein.

24. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance with legal formalities as regard proof of the will would subserve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.

25. The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the record. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said courts. It applied a wrong legal test and thus, came to an erroneous decision.”

29. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433: (2006) 14 Scale 186] this Court held: (SCC p. 447, paras 32-33) “32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.

33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85] and Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784].) Subject to above, proof of a will does not ordinarily differ from that of proving any other document.”

30. Noticing B. Venkatamuni [(2006) 13 SCC 449: (2006) 11 Scale 148] it was observed: (Mrudula Jyoti Rao case [(2006) 13 SCC 433: (2006) 14 Scale 186], SCC p. 448, paras 36-37)

100. As to the question of undue influence, to succeed, the Defendant must show that the will was not in accordance with Kannamal’s wishes. It must be vitiated by some importunity. That it does not accord with Vatsala’s interests is wholly immaterial; what she must show is that Kannamal was placed under some form of duress to make a testamentary disposition contrary to her true intent.

101. Section 61 of the Succession Act and its illustrations read:

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 his, A’s favour; such will has been obtained by fraud, and is

(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.

(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 judgment 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 redered invalid by the intercession and persuasion of B.

(viii) A, with a view to obaining a legacy from B, pays him attention and flatters him 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.

102. Undue influence, to invalidate a will, must amount to coercion or fraud. Its existence must be established as a fact. The actual exercise of undue influence must be shown.13 Not all influence is per se or axiomatically ‘undue’. After all, affection, affinity and every other human emotion is some form of ‘influence’, and we are all, in varying degrees, in almost everything we do, susceptible to myriad ‘influences’. Our personal likes and dislikes, our preferences and predilections, the choices we make, often at the instance of, or in emulation of, others we admire or hold dear, are all forms of ‘influence’. Not one of them is ‘undue’. To succeed on a charge of undue influence, the person impeaching the Will must show by affirmative evidence that the testator desired something different than the Will shows. This is not to be left to conjecture. There must be evidence in the form of material that shows that, in making the Will, the testator did that which he did not intend or could not reasonably be expected to have intended.14

14 Madhuri Pukharaj Baldota v Omkarlal Daulatram Banawat & Ors, 2015 SCC OnLine Bom 308: 2015 (4) Mh LJ 327.

103. As a general rule, Courts tend not to lean to interpretations that would result in intestacy;15 and certainly not on a thin thread. Undue influence cannot be presumed. It must be pleaded and proved. The Defendant needs to show that Kannamal was wholly under Raghunathan’s domination, and acted on his dictates at least in the matter of the making of the wills; that she did as he commanded and had no choice in the matter; and that, but for this undue influence, she would not have been moved to make such a will. The actual exercise of that undue influence on the testator, and which is in the nature of coercion and fraud, must also be demonstrated. It is not enough to show that one person was in a position or had the power to overbear the testator; it must be shown that will was the result of the exercise of that power.16 Generalized allegations will not do: undue influence is to be pleaded with specificity, particularity and precision.17 As pointed out by this Court in Arvind Bhaurao Gangashettiwar & Ors v Smt Indirabai /o Balkrishna Gangashettiwar:18 “26 … Mere presence of motive and opportunity for playing fraud or exercising undue influence are not sufficient to draw any inference in this respect.”

104. It is therefore not enough to show that there was mere influence. There must be evidence of undue influence, i.e., material to show that the testator did something he did not intend or could not

15 Pearey Lal v Rameshwar Das, AIR 1963 SC 1703; Bajrang Factory Limited & Anr v University of Calcutta & Ors, (2007) 4 SC 513.

17 Afsar Shaikh & Another v Soleman Bibi & Ors, (1976) 2 SCC 142. 18 2008 (5) All MR 651. reasonably be expected to have intended.19 In Naresh Charan Das Gupta v Paresh Charan Das Gupta,20 the Supreme Court said: “13. It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as “undue”. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion — it has often been observed that undue influence may in the last analysis be brought under on or the other of these two categories — the will cannot be attacked on the ground of undue influence.”

105. In the very old English decision in Hall v Hall,21 one that has held the field on this aspect of the law, the Court said: Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: “To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting or the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as

19 Wingrove v Wingrove, 1885 XI PD 81; Hall v Hall, 1868 I XXXI P&D Vict LR 481 20 AIR 1955 SC 363. Also see: Charulata @ Renuka Haresh Lulla v Gul Khanchand Gidwani & Ors, 2013 (2) All MR 261. 21 (1868) LR 1 P&D 481. the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened.” And thus Sir Wilde concludes: “In a word a testator maybe led but not driven and his Will must be the off-spring of his own volition and not the record of someone else’s.”

106. The Defendant relied on these authorities: Niranjan Umeshchandra Joshi v Mrudula Jyoti Rao,22 already included in the preceding discussion; Bharpur Singh & Ors v Shamsher Singh,23 which follows Thimmajamma; Kavita Kanwar v Pamela Mehta & Ors,24 which reaffirms the law I have discerned earlier; and Murthy & Ors v C Sardambal & Ors,25 which follows the previous line of authority. These are simply cited for a reiteration of well-established principles. Nothing is shown to distinguish those cases as the correct law in contrast to previous learning, or to show how these cited authorities should be preferred and for what purpose.

107. With this, I turn to the areas for discussion, following the group outlined above.

108. I begin with Section 59 of the Indian Succession Act.

59. Person capable of making wills.—Every person of sound mind not being a minor may dispose of his property by will. Explanation 1.—A married woman may dispose by will of any property which she could alienate by her own act during her life. Explanation 2.—Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Explanation 3.—A person who is ordinarily insane may make a will during interval in which he is of sound mind. Explanation 4.—No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. 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 judgment as to the proper mode of disposing of his property, makes a will. This is a valid will.

109. This tells us clearly the task of both sides. For, on testamentary capacity, we need to look only at the evidence of PW-5, the Plaintiff, the Defendant herself, DW-1 and Dr Johari, PW-1. There is no other oral evidence on health.

110. It is not the law that every testator must be in perfect health; Explanation 3 to Section 59 makes this clear. The test is if the testator, despite, as Illustration (iii) says, being very feeble and debilitated knew what he or she was doing, and is capable of exercising proper judgment as to the proper mode of disposing of his or her property.

111. The only evidence Vatsala was able to marshal was that Kannamal was ‘not in a good state of health’. But what does this mean? She came to Mumbai in January 2001 and took wheelchair assistance. What of it? On its own, this would not render her so incapacitated that she could not make a will. Dr Johari examined her three times, and then two other physicians did so too. Anaemia, dehydration and hypothyroidism were known conditions — but none of these is shown to have so adversely affected Kannamal’s physical or mental condition as to render her incapable of making a will. The certificate from Dr Rao from Bangalore also does not indicate such a poor condition or incapacity. It would be hard to credit a person of advanced years not requiring some medical care. This submission has only to be stated to be rejected: The fact the deceased took three days to write three pages raises serious doubt about her testamentary capacity. It is also material to note how the writing goes, how her handwriting is also shaky this also will show that the condition of the testator was not sound while executing the Will.

112. It was not until February 2008 that Vatsala for the first time introduced a medical certificate from Dr Suresh Rao. It is dated 2nd January 2001, the very day Kannamal and Raghunathan took the morning flight to Mumbai. I have not the slightest hesitation in discarding this document out of hand. It has discrepant rubber stamps, different telephone numbers and was evidently procured. The certificate of the day before, 1st January 2001, from the same doctor did not say that Kannamal was unfit to travel. This is all the more peculiar because in cross-examination, Vatsala agreed that during her entire time in Bangalore, Kannamal had precisely zero medical tests. Even this later certificate does not speak to a lack of testamentary capacity. Curiously, he was not brought forward as a witness.

113. Kannamal kept a daily diary. As late as December 2000, we see in this a mention of a Supreme Court case and her comments on it. In this diary, Kannamal moves effortlessly between English and Tamil. There is also evidence of her handwritten recipes.

114. On Issue 3 and testamentary capacity, it seems to me that the Defendant strains the bounds of credulity. There is absolutely no cogent evidence of physical or mental impairment. To the contrary, the only evidence is that other than routine healthcare as might be expected in one of these years, there was no other impediment.

115. Above all, one question goes wholly unaddressed by the Defendant: Kannamal lived for two full years after the will was made. There is absolutely nothing to show that in those two years, her condition was vegetative or such that she could not function reasonably normally.

116. I hold that the Plaintiff has established that Kannamal had sufficient testamentary capacity. The Defendant has failed to prove that Kannamal was not of sound mind. IV Approaching the Evidence on the three issues

117. As I noted, “suspicious circumstances” is something of a catchword or a shibboleth. It is entirely undefined, and it cannot be defined. It speaks to a concatenation of circumstances, which, taken together are sufficiently compelling to persuade a court to change its approach from one of caution to one of disbelief. Seldom is a single fact or event sufficient to constitute a ‘suspicious circumstance’; the evidence must be weighed in its entirety.

118. Viewed like this, then, ‘suspicious circumstances’ is broad enough to take within its sweep many seemingly disparate factors. Therefore, in what follows, though I have for clarity followed my grouping, this should not be misunderstood. The involvement of the propounder of the will is, for instance, one suspicious circumstance — if proved. That a will is shown to be ‘unnatural’ is another. And there may yet remain other facts that lie somewhere in between.

119. We are, after all, dealing with people: uncertainty, inconsistency, unpredictability, and the vagaries of human nature are to be expected. It follows, therefore, that a mere assemblage of unlinked or unrelated instances cannot serve to fulfil the requirement of ‘suspicious circumstances’. The counter-narrative proposed by a defendant in a contested testamentary action must necessarily have some degree of cohesion. One does not expect a hundred percent consistency — that would be unreasonable — but at the very least it must be shown to the court that there is a plausible view of such a degree of probability that, on balance, it demands acceptance.

120. I note this because of the definitions of proved, not proved and disproved in the Evidence Act. “Proved”.— A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”.—A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. “Not proved”.—A fact is said not to be proved when it is neither proved nor disproved.

121. Matters of ‘proof’ in a civil trial are, therefore, matters of the greatest probability or likelihood. Circumstances — including suspicious ones — must persuade a court to act on a supposition that a fact to be proved exists or does not exist.

122. Consequently, it is not unreasonable to expect some coherence to the plea raised by a defendant. Isolated nuggets of disagreement or disgruntlement do not an argument make. In constructing a defence on suspicious circumstances, every brick must be placed in its proper place so that, when done, the edifice is clearly discerned. To pick up odd and unconnected portions from an unstructured crossexamination will not serve the purpose.

123. The cross-examination itself must, as commentary after commentary tells us, work to a plan. There must be a defined case sought to be proved. A scatter-shot approach attacking every assertion by the other side is frequently pointless. The latitude in a cross-examination is indeed wide; but that latitude includes the latitude not to ask a question, and a skilled cross-examiner will know when to leave well enough alone. A wise cross-examiner will ask an open-ended question only if he knows there is only one answer, or if the answer, whatever it may be, can only help his client.

124. Let me consider how the Defendant places her case. There is, first, the case of the ‘involvement’ of Raghunathan in preparation of the will. This partly overlaps the question of undue influence and even reaches into the‘unnatural will’ aspect. Vatsala’s narrative is, at its broadest, that for no reason at all, Raghunathan arrived in Bangalore In January 2001 and literally shanghaied Kannamal, took her away from a place where she was perfectly content, to Mumbai and there made her immediately write and execute a will to his dictates, liking and preferences, wholly cutting out every other member of the family except Raghunathan’s own wife, Syamala. In doing so, Kannamal broke with her own past practice — she had made several wills, and these were not so exclusionary.

125. That, in a nutshell, is the whole of it. It demands that I address myself to one singular question: not why Kannamal made this will, but why she left Bangalore for Mumbai. The answer to this answers everything.

126. To carry it the necessary distance, Vatsala would have to show (presumably through answers elicited in cross-examination) that Raghunathan came to Bangalore with pre-meditated intent, viz., to get Kannamal to Mumbai and there to get her to make a will in favour of his wife.

127. No such case was ever put to Raghunathan. There is no such statement or averment in either of the affidavits in support of the caveat or the examination in chief. V The Case in the Caveat and the Defendant’s Evidence

128. In paragraph 4(f) of the first Affidavit in Support of the Caveat, Vatsala mentions three earlier wills of March 1985, 11th June 1998 and 10th December 1998 at Chennai, all registered there. Later, it emerged that there were as many as five previous wills: 29th August 1982, 8th March 1985, 3rd September 1993, 15th June 1998 and 10th December 1998. But this in itself shows that Kannamal was no stranger to the making of wills, and can safely be said to have known what will-making, execution and attestation involved. It is highly unlikely she would have been unaware at all; she was, after all, the wife of a Supreme Court judge.

129. In particular, the 1982 will gave all assets to Syamala and appointed Raghunathan as the sole executor. There was no other beneficiary. The 1985 will gave Syamala a life interest in the larger of the two bungalows in Chennai (of which more a little later) to Syamala, and, after her, an absolute bequest to her daughter Daya (Ms Rajda’s friend). Vatsala got a life interest in the smaller house and her daughter Ramya was to receive an absolute bequest thereafter. Other assets were distributed, and the executors were others. In the third will of 3rd September 1993, Kannamal reverted to her first pattern, giving everything to Syamala and appointing Raghunathan as her sole executor. In the fourth will of 15th June 1998, she gave life interests to both Syamala and Vatsala, and then made absolute bequests to their daughters. Syamala and Vatsala were the joint executors. Raghunathan received a bequest. Vatsala’s husband, Srinivasan, did not. Ashwin, Syamala’s son, received a bequest. In the fifth will of 10th December 1998, an independent executor was appointed. The larger house went to Syamala, the smaller one to Vatsala, some charitable bequests were made, there was a distribution to the great grand children, and Raghunathan was charged with recovering some assets and ensuring their distribution.

130. There is a discernible pattern or trend here. Kannamal made not a single will in which she totally cut out Syamala. She made at least two wills that cut out Vatsala totally. In only will was there an absolute bequest to Vatsala, and that too of the smaller property. Raghunathan was the sole executor to the first will and the third will. The present disputed will, the sixth in line, cannot, therefore be safely said to be so utter and complete a departure from her previous wills to immediately say it was ‘unnatural’, i.e., something Kannamal would never have done. For Kannamal had done precisely the same thing earlier; twice.

131. The submission is that‘there was no explanation in three wills’ (the first, the third and the present one) where all legal heirs were excluded while some were in the other wills is only to be stated to be rejected. Kannamal did not need to explain anything to anyone. The entire logic is flawed, suggesting that the purpose of a will is inclusive, to maintain the line of succession. It is the other way around, or else there would be no need for a will. Wills disrupt the line of intestate succession. Most certainly Kannamal did not need to explain to Vatsala.

132. In any case, she did so. The other wills contain explanations (including that Vatsala married into a wealthy family). The first and third wills which excluded Vatsala entirely themselves had reasons. In the first will, Kannamal wrote: “Neither Vatsala nor anyone claiming through her have any title or tight over the said two houses. My daughter Vatsala Srinivasan is comfortable in Bangalore. Her husband is the Managing Director in Widia India Ltd., Bangalore. He is earning a salary of over ten thousand rupees per month. He has got a big house at Bangalore. Not only that my husband got her married in a well to do place. During her marriage and even afterwards, my husband and myself have given her quite a lot. Therefore, she does not need my houses and properties. I have bequeathed my houses and properties under this Will to Shyamala Raghunathan. We got Shyamala married to Raghunathan in an ordinary place. Shyamala Raghunathan does not have wealth or own house as Vatsala. Further, we have not given to Shyamala as much as we have to Vatsala. For this reason, I have bequeathed under this my Will the two houses and the compound and all movable estates to my daughter Shyamala. … Further in my old age, I have decided to stay only with my daughter Shyamala. Therefore, I have made these above dispositions.”

133. In the third will, Kannamal said: “I have never done anything against the wishes of my husband. Hereafter also I shall act according to his wishes. His desire is that after our lifetime both his and my all properties should go only to my elder daughter Shyamala, wife of Sri N. Raghunathan, I.A.S. Accordingly he has mentioned so in his Will at the end. I do not have any male heirs. All my last rites shall be performed by my son-in-law, Shyamala’s husband N. Raghunathan. He is a devout person. He has faith in our old tradition. He is a gentleman. That is the reason why I desire my last rites to be performed by him. … I have given Shyamala in an ordinary family. She is not affluent. My husband Shri N. Rajagopala Iyengar has mentioned it in detail in his Will. Therefore in addition to the above properties and monies and properties that may accrue hereafter should go only to my elder daughter Shyamala Raghunathan.

134. In Ramabai Padmakar Patil & Ors v Rukminibai Vishnu Vekhande,26 the Supreme Court said:

8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664: AIR 1995 SC 1852] it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291: AIR 1972 SC 2492] it has been held that if the propounder succeeds in removing the suspicious circumstance, the court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part the near relations. In Rabindra Nath Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed.

135. This law has been consistently applied.27 It is pointless to multiply authorities. In such cases, much turns on the individual facts.

136. Interestingly, Justice Ayyangar too made will on the same date as Kannamal’s first one, 29th August 1982. He, too, expressed his desire to bequeath his properties to Syamala if Kannamal died before him. Like Kannamal in the 1982 will, he, too, said he would like to live with Syamala. Justice Ayyangar’s will appointed Raghunathan as the sole executor — as did Kannamal’s then, and as she did now. Justice Ayyangar’s will received probate.

137. Incidentally, there was an argument that ran like this: why would any sane person make three similar holograph wills? I confess I do not know what to make of this. Was it being suggested that Kannamal had been non compos mentis for a very long time? There was no such case. And what of the fact that Justice Ayyangar too made multiple holograph wills? This is the peril of advancing an argument untied to evidence, pleadings, facts, law or even logic.

138. Conveniently, in her further affidavit in support of the Caveat, Vatsala does not mention the 1982 or the 1993 wills at all. She maintains the false case that the 2001 will was the only one that excluded her completely. This, in paragraph 8, is said to create a ‘serious doubt’ about the genuineness of the will. But once it is seen that there were identical exclusion, no vestige of such doubt remains for that reason, i.e., only on account of the exclusion.

139. In her Affidavit in lieu of Examination-in-Chief, Vatsala now mentions three earlier wills: the second (1985), fourth (1998) and fifth (1998). She does not mention the first (1982) and third (1993) at all. These two were led in evidence by Raghunathan with his Affidavit in lieu of Examination-in-Chief. Yet, Vatsala does not address them at all in her testimony.

140. Even more damaging is that there was no cross-examination at all of Raghunathan on these two wills, marked Exhibit PW5-3 and PW5-5 in evidence. They went entirely unchallenged.

141. We are left to speculate about Vatsala’s exclusion. But if that exclusion is not per se a suspicious circumstance, it cannot become on account of speculation. What Vatsala would have to show is that her exclusion was a near-impossibility, that her filial relations were such that it was inconceivable that Kannamal would even consider ever excluding her. But the earlier wills themselves do not bear this out.

142. Raghunathan gave evidence that relations between Vatsala and Kannamal were, to put it mildly, uneven. Kannamal did not like being left alone. She was, and frequently, he said, even when Vatsala was in Bangalore. Raghunathan was not cross-examined on this. Vatsala travelled a great deal too. I will ignore the rebuttal evidence because Raghunathan died before he could be cross-examined on it.

143. But let me turn now to the events of 1998 to 2001, and the circumstances in which Kannamal came to Mumbai and then began making her will. Raghunathan and Syamala stayed with Kannamal in Chennai after August 1997. They left Chennai in December 1998. Vatsala says Kannamal ‘threw them out’, but there is nothing to support this. We have only Vatsala’s word for it, for she telephoned Raghunathan on 28th December 1998 to say Kannamal did not want them in her house, and should they come to Chennai they would have to stay elsewhere. Raghunathan says Vatsala created this misunderstanding and it led to a two-year hiatus during which he and Syamala had no contact with Kannamal. On its own, this weakens considerably the case of undue influence or a suspicious circumstance. But was is telling is what happened after December

2000. Raghunathan had then just returned from an extended twomonth visit to the United States. On 17th December 2000, Vatsala emailed Syamala in regard to the letting of the smaller of the two houses in Chennai (Vatsala says this upset Kannamal, but there is no evidence of that). Vatsala said that Chota Saheb — the family’s nickname for Raghunathan — had told her from the USA that he would deal with the entity for the smaller property when he returned. Vatsala said she had spoken to Raghunathan the day before and he seemed reluctant. She said the matter was pending, and wanted to know if Raghunathan was going to act on it or not; else she would do what she could.

144. After this, Raghunathan called Vatsala on 22nd December 2000 in Bangalore. A servant told him that Vatsala had gone to Chennai. Raghunathan then called Vatsala in Chennai (there are telephone records). In the evening of 22nd December 2000, Raghunathan got a call from one Geeta from Chennai stating that Kannamal had called from Bangalore, asking Geeta to tell Raghunathan to urgently phone her (Kannamal) in Bangalore. As Vatsala was not in Bangalore and he had received a call on behalf of Kannamal, Raghunathan contacted Kannamal in Bangalore on 22nd December 2000. On the call, Kannamal scolded Raghunathan for neglecting her. Raghunathan says he reminded her about Vatsala’s call on 28th December 1998 that Kannamal had said Raghunathan and Syamala were not welcome, Kannamal denied having said anything of the kind.

145. Now pausing for a moment, this evidence, unshaken and undisturbed, is a clue about the trajectory of these relations and points to the eminent likelihood of Vatsala having created a misunderstanding between Kannamal on the one hand and Syamala and Raghunathan on the other.

146. During that phone call on 22nd December 2000, Raghunathan says Kannamal described her situation in Vatsala’s house in Bangalore as Sita in Ashokvan. She pleaded with him to come to Bangalore immediately and take her to Mumbai. She complained of neglect, loneliness and poor care. Raghunathan said he would do so if Vatsala agreed. He contacted Vatsala on 25th December 2000 at Parali — she admits in her evidence she had gone there — and told her of Kannamal’s wish to come to Mumbai. Vatsala, Raghunathan deposed, readily agreed. Later, Vatsala herself called Raghunathan on 28th December 2000 and asked him to come to Bangalore earlier to take Kannamal to Mumbai.

147. Raghunathan was not cross-examined on any of this.

148. These are the circumstances in which Kannamal came to Mumbai with Raghunathan on 1st January 2001 — and after Raghunathan got a certificate from Dr Suresh Rao about her medical needs.

149. Did Raghunathan play an ‘active part’ in the preparation or execution of the will in question? All the evidence points to the contrary. Absolutely nothing is proved in evidence in this regard.

150. I have already discussed the law regarding undue influence. But Vatsala led no evidence to show any such undue influence; she left it conjecture in argument. In paragraph 4(d) of the first Affidavit in Support of the Caveat, Vatsala simply said that “the execution of the alleged Will was obtained by undue influence, misrepresentation, fraud and coercion.”No particulars were furnished then or after. The framed issue specifies certain paragraphs. But nothing in those paragraphs speaks to undue influence. Paragraph 3(a) is directed to the statement in the will by Kannamal that she was unwell. Paragraphs 3(b) to 3(p) deal with alterations in the Will.

151. Vatsala ran her case like this. She relied on her lawyers’ letter dated 3rd September 2007 to allege that Kannamal was ‘mentally weak’ — and since 1963, an altogether fantastic and unbelievable assertion — and, after Justice Ayyangar’s passing in 1984, was highly susceptible to being influenced. Of this, there was no evidence. If anything, all the evidence pointed to the contrary. Then she said that Kannamal was brought to Mumbai on a false pretext of being medically examined but to coerce her to write this will. Again, this is without supporting evidence. There is again the same misleading reference to only a few of the several previous wills. Kannamal was with Raghunathan and Syamala in Mumbai — and from this alone the presumption had to be of coercion and undue influence.

152. Interestingly, no suggestion was put to Raghunathan regarding undue influence. In my view, absent a case being put to the PW-5, the original Plaintiff, this plea is simply unavailable to Vatsala.

153. Many things may be urged in arguments. But they must have a foundation in evidence. I considered the law in this regard in Harish Loyalka & Anr v Dilip Nevatia & Ors,28 when I found that the decision of the Division Bench of the Calcutta High Court in AEG Carapiet v AY Derderian29 was being persistently misapplied and misunderstood. Carapiet v Derderian did not say that every single statement had to be‘put’ to the witness. It said that the‘failure to put the important and crucial part of the case to the witnesses brought to prove testamentary capacity must be held against the respondents’.

154. In Carapiet v Derderian, the Division Bench of the Calcutta High Court said:

9. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in crossexamination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the crossexamination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff’s account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise 28 2014 SCC OnLine Bom 1640: (2015) 1 Bom CR 361. 29 1965 SCC OnLine Cal 44: AIR 1961 Cal 359. upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.

10. On this point the most important and decisive authority is Browne v. Dunn, reported in (1893) 6 R 67. It is a decision of the House of Lords where Lord Herschell, L.C., Lord Halsbury, Lord Morris and Lord Bowen were all unanimous on this particular point. Lord Chancellor Herschell, at page 70 of the report observed: “Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass is by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

11. Lord Halsbury, the other member of the House of Lords, at page 76 of the same report said: “My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.”

12. In fact Lord Halsbury described the situation as a “perfect outrage” at page 77 of the said report. After quoting the evidence the learned Lord said: “My Lords, it seems to me that it would be a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to crossexamine the witness upon that evidence, it is not to be taken as a fact that witness did complain of the plaintiff’s proceedings, that he did receive advice, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all.”

13. The same view is expressed in the 13th Edition of Odger on Pleading and Practice at page 261 and the 9th Edition of Phipson. On Evidence at page 497-98.

155. In Loyalka, I deduced these principles:

16. The purport of this lucid decision is clear. A witness whose testimony or credibility is impeached must be given an opportunity to defend his case and to meet the case of the party cross-examining him. Certainly, he must be cross-examined as to the correctness of what he has said. But to suggest to him that what he said is generally incorrect, and to obtain a denial to this, seems to me entirely pointless. It is one thing to point out contradictions or inconsistencies and to ask the witness to explain these, or to suggest that two statements made by him cannot stand together and therefore to ask him to depose as to which of these is correct; or even to suggest that beyond his word he has no evidence, and so on. What must be put to the witness is the material, essential and critical part of the cross-examining party’s case. It is neither necessary nor desirable to put to the witness line by line that what he has stated is incorrect, without regard to whether that testimony is or is not material. Even a general suggestion that the entirety of his testimony is incorrect is unnecessary; the suggestion and its inevitable denial are of no value and no case I know of has turned on that. An omission to ‘put’ a line-by-line case or even a general case can never be an admission or an acceptance of his testimony generally; after all, he is being cross-examined, and the very fact that he is being questioned necessarily means that his testimony is not entirely accepted. But where the witness has a specific case and this is not tested, an admission may result. Equally, where the cross-examining party has a specific case, the witness must be given a chance to refute it.

17. In Carapiet v Derderian there was such a positive case: Reverend Venkata Ramiah visited the testator and found him to be in an unfit physical and mental condition. This case was affirmative and it was absolutely essential that it be put to the other side's witnesses so that they might explain, respond and refute it. The opposing party could not possibly be held to have admitted this failing (or failed) physical and mental condition simply because no such case was ever put to them. Their testimony could not have been discredited or impeached on the basis of their apparent failure to respond to this, simply because they were never afforded an opportunity to do so. This was the situation before the Division Bench of the Calcutta High Court, and it was in that context that it held that the ‘case was required to be put’ to the plaintiff's witnesses. But nothing in Carapiet v Derderian requires that cross-examining counsel must put to the witness a series of banal questions with inevitable denials that every single statement made by him is incorrect. The ‘case’ that is always required to be ‘put’ to the witness must be the affirmative one, i.e., the “essential and material case” and the “important and crucial part”, to use the words of the Calcutta High Court. Judicial time need not be wasted in suggesting to the witness that every statement in his pleading is ‘false’. Nothing can possibly turn on such a question and such an answer.

18. In a probate action, for instance, where the case is that will is a forgery, this must be put to the witness. He must have a chance to answer this. The case of forgery is a specific case. But it is never necessary to put to him a generalized and omnibus suggestion that his entire testimony is untrue or that everything he has said in a particular paragraph is incorrect. Indeed, this is no case being put at all.

156. Carapiet v Derderian was approved by the Supreme Court in CBI v Mohd Parvez Abdul Kayuum.30

157. Therefore, it is not permissible — neither proper nor just — to construct arguments unmoored to evidence and a case being put in cross-examination when the cross-examiner has a specific case to canvas. There is no case of participation in the will put to Raghunathan. There is no case of undue influence and, in any case, a generalized suggestion absent cogent evidence (for undue influence is a species of coercion) would not do.

158. No other suspicious circumstances are proved. Issues Nos 3, 4 and 5 are answered in the negative.

F. JURISDICTION

159. I noted at the head of this judgment that the objection on jurisdiction was never pressed. I maintain that. I have not a single note on any argument, and the Defendant’s Advocates’ notes have no submission on it either. But it soon and quickly despatched. The will was made in Mumbai. Kannamal lived in Mumbai for two years. She died in Mumbai. It deals with immovable property. That is sufficient to hold that the will (being made in Mumbai), needed probate. The question was whether, in view of Section 270 of the Succession Act, that probate action could be brought in this Court in its testamentary jurisdiction. It is impossible to hold that Kannamal did not have a fixed place of abode or a residence in Mumbai. It is not shown that she lived anywhere else. Vatsala led no evidence to show otherwise.

G. FINAL ORDER

160. In view of this discussion, the testamentary suit is decreed. The registry will proceed to issues Letters of Administration with Will Annexed to the Last Will & Testament dated 2nd January 2001 of R Kannamal. It will do so urgently.

161. At Mr Ramamurthy’s request, the operative portion of the order is stayed for eight weeks from the date this order is uploaded. (G.S. PATEL, J.)