H. VENKATACHALA IYENGAR versus B. N. THIMMAJAMMA & OTHERS

Citation: [1959] SUPP. 1 S.C.R. 426 · Decided: 13-11-1958 · Supreme Court of India · Bench: T.L. VENKATARAMA AIYYAR, P.B. GAJENDRAGADKAR, A.K. SARKAR · Disposal: Dismissed

Judgment (excerpt)

.1.958 
November IJ. 
426 
SUPREME COURT REPORTS [1959] Supp. 
H. VENKATACHALA IYENGAR 
v. 
B. N. THIMMAJAMMA & OTHERS 
(VENKATARAMA AIYAR, P. B. GAJENDRAGADKAR 
and A. K. SARKAR, JJ.) 
Will-Mode of proof-Pnus-Suspicious circumstances-Re-
moval of such suspicion, if part of the initial burden on the propo-
under-Indian Evidence Act, r872 (I of r87z), ss. 45, 47, 67, 68-
Indian Succession Act, r9z5 (XXXIX of r9z5), ss. 59, 63. 
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 s. 63 
of the Indian Succession Act. Proof in either case cannot be 
mathematically precise and certain and so the test should be one 
of satisfaction of a prudent mind in such matters. The onus 
must be on the propounder and in absence of suspicious circum-
stances. surrounding the execution of the will, proof of testamen-
tary capacity and signature of the testator as required by law 
may be sufficient to discharge the onus. 
Where, however, there are suspicious circumstances, the 
onus would be on the propounder to explain them to the satis-
faction of the Court before the will can be accepted as genuine. 
If the caveator alleges undue influence, fraud or coercion the 
onus will be on him to prove the same. Where there are no such 
pleas but the circumstances give rise to such doubts, it is for the 
propounder to satisfy the conscience of the Court. 
What are suspicious circumstances must be judged in the 
facts and circumstances of each particular case. If the propounder 
takes a prominent part in the execution of the will which confers 
substantial benefits on him, that itself is a suspicious circum-
stance attending the execution of the will and in appreciating 
the evidence in such a case, the court should proceed with an 
open but nevertheless vigilant and cautious mind. 
Barmes v. Hinkson, (1946) 50 C.W.N. 895, Fulton v. Andrew, 
(1875) L.R. 7 H.L. 448, Barry v. Bullin, [1838] 2 Moo. P.C. 480, 
V allasamy Servai v. Sivaraman Servai, (1929) L.R. 57 I.A. 96 and 
Sarai Kumar Bibi v. Sakhi Chand, (1928) L. R. 56 I. A. 62, refer-
red to. 
Case-law discussed. 
In the instant case the appellant, as the sole executor to a 
will, brought the suit out of which the appeal arises, for a decla-
ration that the testatrix was the owner of certain properties and 
was as such entitled to dispose of them by the will and asked for 
consequential reliefs purporting to give effect to the be'!uests 
made by her. It appeared from the evidence that the appellant 
took a prominent, if not a decisive, part in the execution of the 
·-
' ' 
ll) S.C.R. SUPREME COURT REPORTS 
427 
will, which contained substantial bequests in favour of his sons. 
I958 
But there was no evidence to show that the draft was ever 
approved by the testatrix or that the will was fully read out to H. Venkatachala 
her and she knew its contents. The trial court decreed the suit 
Iyengar 
but the High Court dismissed the same. 
v. 
Held, that the High Court was right in setting aside the 
B. N. Thimma-
finding of the trial court that the will had been duly and validly 
jamma 
executed. 
and Others 
Held further, that the trial court was in error in holding 
that the proof of signature in the instant case could raise a 
presumption as to the testator's knowledge of the contents of 
the will. 
Surcndra Nath Chattcrji v. ]almavi Charan M11khcrji, (1928) 
l.L.R. 56 Cal. 390, explained and approved. 
CIVIL APPELLATE JURISDICTION: 
Civil Appeal No. 
18 of 1955. 
Appeal from the judgment and decree dated March 
20, 1951, of the Mysore High Court in R.A. No. 155 of 
1947-48, arising out of the judgment and decree dated 
December 19, 1947, of the Court of Sub-Judge, Mysore, 
in 0. S. Suit No. 44 of 1946-47. 
S. I{. Venkataranga Iyengar and K. Keshava Iyengar, 
for the appellant. 
A. V. Viswanatha Sastri and K. R. Choudhry, for 
responde11t No. I. 
1958. November 13. The Judgment of the Court 
was delivered by 
GAJENDRAGADKAlt, J.-This appeal arises from a Gajendragadkar ]. 
suit brought by the appellant in the court of the Sub-
ordinate Judge, Mysore, as the sole executor of the 
will alleged to have been executed by one Laksh-
mamma on August 22, 1945, (Ex. A). In this suit the 
appPll<mt claimed a declaration that the said Laksh-
mamma was the owner of the properties mentioned in 
the schedule a.ttached to the plaint and as such was 
entitled to dispose of them by a 

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