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Before referring to the pleadings of the parties it would be relevant to mention the material facts in regard to their relationship which are not in dispute. One Annaji lyengar who died in July 1903 left behind him his adopted son, the appellant, and two daughters Gundamma alias Ranganayakamma who is still alive and Lakshmamma alias Achamma who is alleged to have executed the will in suit and died thereafter on September 26, 1945, at Mandya. Respondents 2 to 4 are the sons of the appellant. Lakshmamma was married to Sadagopalachar who died in December 1908. The couple had three children, a son named Narayana lyengar who died on January 14, 1944, without any issue and left behind him his widow respondent 1 ; and the two remaining children of Lakshmamma were daughters Thirumalamma and Yadugiramma. Both of them are dead. Thirumalamma was married to one G. Parthasarathy lyengar by whom she had a son of weak intellect, who died pending litigation, and three daughters Neelu, Jaya and Padmini. Yadugiramma was married to Kalbagal Garudachar and by him she had a son Narasimha lyengar, respondent 5, and daughter Lilly. Kalbagal Garudachar had a son S. G. Kalbagal, (hereinafter described as Junior Kalbagal) from his first wife. Jaya was married to Kalbagal Junior. The claim made by the appellant under the will is resisted by respondent 1.

The appellant then applied for and obtained a certificate from the High Court that the decision under appeal is one of reversal and it involves a claim respecting properties of the value of not less than Rs. 20,000. In pursuance of this certificate the High Court ordered that the appeal to this Court should be admitted; and so this appeal has come to this Court.

Since the main contention raised by the appellant is directed against the finding of the High Court that the will in question is not proved to be the last will and, testament of Lakshmamma, it would be necessary to refer to the broad features, and dispositions, of the will and the evidence adduced by the appellant to prove its execution. At the material time Lakshmamma was about 64 years of age. She usually resided at Hampapur; but about a month before the executing of the will she had gone to Mandya to attend the marriage in the house of Junior Kalbagal. After the marriage was over she would normally have returned to Hampapur but she fell ill and had to extend her stay with Junior Kalbagal. The appellant's case is that she had told him that she wanted to execute a will and had given him instructions in that behalf. This talk had taken place be- tween her and the appellant about a year before the execution of the will. The appellant, however, did not find time to get the will written. When Lakshmamma fell ill at Mandya the appellant had gone to visit her and she pressed the appellant to prepare the draft of her will in accordance with her instructions. So the appellant prepared a draft at Mysore a day prior to the execution of the will. He then went to Mandya by. the morning train on August 22, 1945, and the will was got written about 11 or 11-30 a.m. The appellant had the draft in his hand from which he dictated to the scribe Chokkanna (P. W. 3) who wrote the will. After the will was written the scribe took it to the adjoining room where Lakshmamma was lying in bed. The will was then read out to her and was signed by her in five places (Exs. A-1 to A-5). Subsequently it was attested by two witnesses Krishnamurthy Rao (P. W. 1) and Narasimha Iyengar (P. W. 2). Some time later during the course of the day the Sub-Registrar came to the house of Junior Kalbagal and in his 55 presence the will (Ex. A) was duly registered. On the same day at about the same time Lakshmamma executed a power of attorney in favour of the appellant (Ex. EE) and this document was also duly attested and registered. The appellant has examined himself (P. W. 7), the two attesting witnesses (P. W. 1 and P.W. 2), the scribe (P. W. 3) and Junior Kalbagal (P. W.4) in support of his case that the will was duly and validly executed by Lakshmamma. The will is a fairly long document and its English translation spreads over eight printed pages. Though the dispositions in the will have occupied a small portion of the document it contains elaborate arguments in support of the averment of the testatrix that she was entitled to make a will in respect of all the properties mentioned in the will. The will begins with the recital about the illness of the testatrix and says " as I have felt in my mind that it is necessary to mention here certain matters clearly so that there may not be any kind of obstacles and obstruction at the instance of any in respect of my purposes coming into effect after my death I have got them written in detail." Then, the will refers to the gift deed executed by Annaji jointly in favour of the testatrix and her husband Sadagopalachar as well as to Annaji's will under which hypothecation bonds of the value of Rs. 10,000 were bequeathed to both of them. The will then refers to the fact that Sadagopalachar was possessed of only a house and a carriage shed and owned no other ancestral property. Even the said house was of " very ancient times and was in a dilapidated condition ". According to the will Sadagopalachar held a small government job which he resigned in order to live in Hampapur and to look after the property obtained by gift from Annaji. " It was my opinion ", says the will, " that he was probably looking after my share of the property in addition to his own and was improving the same. It is but natural to think in this manner mutually in respect of husband and wife ". Then the will refers to the subsequent purchase of certain lands and avers that the amounts received by the couple from Annaji were utilised for the said purchase. The will then refers to the death of Sadago- palachar in 1908 and describes the management of the properties during the lifetime of Narayana lyengar the son of the testatrix. It says that during Narayanan's minority the testatrix sold some properties at the advice and with the help of her Brother-in-law Srinivasa lyengar for debts "

We would now indicate briefly the evidence led by the appellant on the question about the valid execution of the will. We have already mentioned that the two attesting witnesses, the scribe and the appellant himself have given evidence in support of the will.

Mr. Krishnamurthy Rao (P. W. 1) was a medical officer to the Mysore Sugar Company, Mandya, and he knew the Junior Kulbagal who was working as a Cane Superintendent in the said factory. This witness was called by Kalbagal to attest the will and so he went to his house and saw that Lakshmamma was lying in her bed since she had an attack of paralysis on her left side. According to the witness her mind was clear and he attested the will after ascertaining from her that the document had received her approval. The witness was cross-examined in regard to his statement that he had treated Lakshmamma and it was brought out in his answers that though she may have been under his treatment for about a week he could not say if her name found a place in the hospital register. He, however, added that even patients who are treated in their houses would be mentioned in the hospital 'register if they come and take medicine from the hospital. The witness admitted that the will was not written in his presence and that it was already written before he went to attest it. When the witness was asked about the details of his signature on the will he gave ans- wers which showed that he did not have any clear recollection as to what happened on that date. First he stated that he had put one signature but ultimately admitted that he had signed twice, once while he attested the will and also when the Sub-Registrar registered it in his presence. It fact some of his answers suggest that the witness did not even remember that he was present when the Sub-Registrar arrived and registered the document. The witness stated that the will was read in his presence but he did not know if the whole was read or only a few portions of it.

(1) [1935] A.C. 243.

It is in the light of these decisions that the appellant wants us to consider the evidence which he has adduced in the present case. It would be convenient to begin with the appellant's story about the instructions given by the testatrix for preparing the will. In the plaint the appellant has referred to the sudden illness of the testatrix at Mandya and it is alleged that when she took ill the testatrix sent for him with the obvious intention of making arrangements regarding her properties. Accordingly when he met her at Mandya she explained all her intentions to him in the matter of disposing all her properties and her rights thereto. In other words, the case made out in the plaint clearly and specifically is that when the testatrix was ill at Mandya she sent for the appellant and gave him instructions for preparing a draft of her will. However, when the appellant gave evidence he made a material improvement in his story. According to his evidence, the appellant had received instructions from the testatrix a year before the will was actually drafted. It was then that the testatrix had given him the gift deed (Ex. D) and asked him to prepare the draft. Consistently with this new version the appellant has added in his evidence that when he met her at Mandya during her illness she reminded him that she had asked him to make a will for quite some time and she insisted that the draft should be prepared without any delay. In our opinion, the evidence given by the appellant on this point is clearly an after-thought and his story that he had received previous instructions cannot be accepted as true. Besides, it is somewhat remarkable that, on both the occasions when the testatrix talked to the appellant and gave instructions to him no one else was present; and so the proof of this part of the appellant's case rests solely on his own testimony. If the testatrix had really thought of making a will for over a year before it was actually executed, it is unlikely that she would not have talked about it to other relatives including Kalbagal with whom she was actually staying at the material time.