Holding

A holograph will enjoys a strong presumption of regularity and, absent proof of undue influence or lack of capacity, must be upheld as valid.

Summary

The plaintiff, Joyce Primrose Prestor, sought letters of administration for her mother’s estate, relying on a holograph will dated 19 June 1964 that bequeathed equal shares to her three daughters. The husband and two other daughters contested the will, alleging undue influence by the plaintiff. The trial court held the will was duly executed, attested, and the testator was of sound mind, granting the plaintiff’s relief. The Karnataka High Court reversed, deeming the will "shrouded in suspicion". The Supreme Court reinstated the trial court’s decision, emphasizing the strong presumption of regularity for holograph wills and noting that the burden of disproving the will lay on the defendants, which they failed to meet. Consequently, the High Court judgment was set aside and the appeal allowed.

Issues considered

Whether the plaintiff proved the due execution and attestation of the holograph will.
Whether the testator was of sound testamentary capacity at the time of execution.
Whether the defendants established undue influence or fraud affecting the will.
Whether the holograph will is valid and should be admitted to probate.
What relief, if any, should be granted to the plaintiff.

Legislation cited

Code of Civil Procedure, 1908s. 96
Indian Evidence Act, 1872s. 68
Indian Succession Act, 1925s. 276, s. 291, s. 57, s. 58, s. 61, s. 63

Subjects

holograph willundue influencepresumption of regularityIndian Succession Actprobateletters of administrationburden of proofappellate reviewevidence appraisal

Judgment

A MRS. JOYCE PRIMROSE PRESTOR
v.
MISS VERA MARIE VAS AND ORS.

APR! L 12, 1996

B [M.M. PUNCHHI AND K.S. PARIPOORNAN, JJ.]

India Succession Act 1925-Ss.57, 61, 276--Holograph Will by testat1ix
mother granting equal shares to her three daughters-Application for grant of
Letters of Administration by one daughter resisted by the other two daughters
c and the father alleging will got by undue influence of the propounder on the
teslatri:r-Tria/ Coiut holding undue influence not proved, will was genuine
and plaintiff entitled to letters of administration-High Cowt reversing holding
will shrouded in suspicious circiunstances-Held, High Court e1red; there was
a strong presumption of regulanty of holograph wills and tnal court's finding
was based on proper application of law and unassailable evidence.
D
Practice and Procedure--Tnal Court on appreciation of evidence
upholding legality of holograph will-High Court in appeal reversing 011 a
re-appreciatio11 of evidence-Held, the approach of the High Court was
palpably wrong and its conclusion vitiated; the onus was on the appel/a11t to
E show that judgment under appeal was wrong and 11ot merely seek reapprecia-
tion of entire evidence-c-Code of Civil Procedure 1908, s. 96.

The testatrix P by a will written in her hand on June 26, 1964
bequeathed her property in equal shares to her three daughters • J, the
Plaintiff and Defendants 3 and 4. No part of it went to either her husband
F E or her son. The will was executed in the presence of two witnesses one
of whom was PW 1. The will named E and DW 3 as executors. After P's
death four years later, J was informed that DW 3 was unwilling to act as
executor and that E proposed to contest the will. J then approached the
District Court for grant of Letters of Administration. The validity of the
G will was questioned by E and the other two daughters on the ground that
it was tainted by undue influence of J on her mother P.

At the trial it was admitted by Defendant 3 that the Will was in the
handwTiting of P. The surviving attestor PW 1 stated that J was not present
when the Will was esecuted and signed by P. and the attesters. There was
H no cross examination of these witnesses regarding the due execution of the
268
-·
JOYCE PRIMROSE PRESTOR v. V.M. VAS 269

will. A

After a detailed examination of the evidence, the trial court held that
the will was duly executed and attested and that P was in a sound state of
mind \\'hen n1aking out the \\'ill. There was absolutely no material in the
evidence of the defl"'.ndants \Vhich \\'ould etiect the genuineness of the \Viii.
The facts showed that no undue influence as alleged could be exercised by B
J. Accordingly, the trial court decreed the suit in favour of J.

The High Court allowed the appeal by the defendants 3 and 4 and
held that the case of the alleged will was "shrouded in suspicion". The
plaintiff .J appeal to this court. c
Allowing the appeal, this Court

HELD : l; The finding of the trial court that the will was duly
executed and attested and P was in a sound state of mind when executing
it was based on a proper application of the law and the evidence in the D
case. The High Court wrongly reversed the trial court without giving effect
to the strong presumption of rcgularit.)' and due execution and attestation
of the holograph will. (287-A-B]

Shashikumar Bane1jee v. Subodh Kumar Bane1jee, AIR (1964) SC 529, E
followed.

Ajit Chandra Majumdar v.Akhil Chandra Majumdm; AIR (1960) Cal.
551, H. Venkatacha/a Iyengar v. B.N. Thimmajamma, AIR (1959) SC 443,
Rani Pumima Devi v. Kumar Khagendra Narayan Deb, AIR (1962) SC 567,
Ramchandra Rambux v. Champabai, AIR (1965) SC 354, Surendra Pal v. F
Dr. M,,. Saraswati Arora, AIR (1974) SC 1999 and Smt Jaswant Kaur v. Smt.
Am1it Kaur, AIR (1977) SC 74 , referred to.

"The Law of Wills in India and Pakistan" by Mantha Ramamurthi,
I
p.81, referred to.
G
2. The approach of the High Court was palpably wrong, which
vitiated the conclusion reached by it. The High Court did not bear in mind
I
the salient principles of law that onus was on the appellant to show that
the judgment appealed against was wrong and not merely seek a reassess·
ment of the entire evidence. (283-G; E-F] H
-
270 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A Smju Pe1shad Ramdeo Salm v. Jwa/eshwm; Pratap Naraini Singh,
(1951) SC 120 and Madhusudan Das v. Smt. Nmyani Bai, AIR (1983) SC
114, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3481 of
l979.
B
From the Judgment and Order dated 11.7.78 of the Karnataka High
Court in Misc. F.A. No. 721 of 1974.

C.N. Shree Kumar for the Appellant.
c D.N. Mishra for J.B.D. & Co., for the Respondents.

The following Order of the Court was delivered :

The plaintiff in O.S. No. 4/1970, llnd Additional District Judge's
D Court, Bangalore, is the appellant herein. She filed an application under
Section 276 of the Indian Succession Act, P & SC No. 124/1969 for the
grant of Letters of Administration of the estate of the deceased, Mrs.
Primrose Mary Vas (her mother). Mrs. Primrose Mary Vas had executed
Ex. P-1, Will dated 19.6.1964. The first defendant in the suit (husband of
the testatrix) and the second defendant are the executors of the said Will.
E The plaintiff called upon the executors on 6.3 1969 to take out probate.
She was not favoured with any reply. On 26.7.1969, M/s. D.A. Costa & D.A.
Costa, Advocates informed the plaintiff that the second defendant was
unwilling to act as the executor and that the first defendant was intending
to contest the Will. It was in these circumstances, the plaintiff as a legatee,
F prayed for the grant of Letters of Administration of the estate of the
deceased, Mrs. Primrose Mary Vas (her mother) with a copy of the Will
annexed as Annexure, Ex.P-1. The first defendant in the suit is Mr.
Emmanuel Joseph Vas, Husband of the testatrix, the second defendant is
one of the executors of the Will, plaintiff, defendants 3 and 4 are daughters
of the testatrix and the 5th defendant is the testatrix's son. We will be
G referring to the parties in this appea~ as they were arrayed in the suit. The
first defendant died pending the suit and defendants 3 to 5 were recorded
as his legal heirs. In this appeal filed by the plaintiff, (one of the daughters
and a legatee under the Will), the respondents are defendants 3, 4 and 5
in the suit. The trial court by judgment dated 29.1.1974, held that the Will
H of Mrs. Primrose Mary Vas dated 19.6.1964 is perfectly valid and genuine,
JOYCE PRIMROSE PRESTOR v. V.M. VAS 271

and ordered thus : A
"The suit is decreed. The plaintiff shall be granted letters of
administration with a copy of the Will (Ex.P.l.) annexed, subject
to the following conditions Viz., (I) that she executes the necessary
administration bond under Section 291 of the Indian Succession
Act to the extent of the value of the bequest made to deft. 3 & 4 B
(2) that she produces Estate Duty clearance certificate and '(3)
that she pays the necessary court fee for drawing up the letters of
administration. The defendants 3 and 4 will pay the cost of this to
the plaintiff and bear their own."

In appeal, by defendants 3 and 4, a Division Bench of the Karnataka High
c
Court, by judgment dated 11.7.1978, reversed the said judgment and held
that the Will is shrouded in suspicion and the propounder (the plaintiff)
has failed to satisfy "the judicial conscience, dispelling all the doubts that
arise in this case, that the Will, Ex.P-1 was legally and properly executed
by Mrs. Vas with attestation by Mrs. Gadre and another." D
2. The plaintiff filed S.L.P. (C) No. 991/79 and this Court granted
leave to appeal against the aforesaid judgment of the High Court of
Karnataka by order dated 13.12.1979, and hence this appeal.

3. In this appeal the main question that falls for consideration is, the
E
legality and validity of the Will dated 19.6.1964 executed by the testatrix,
late Mrs. Primrose Mary Vas.

4. A few facts, which are not in controversy should be borne in mind
in adjudicating the case. The testatrix is one Mrs. Primrose Mary Vas. She F
was running a_hotel, namely, 11Terra Vera11 , at Bangalore. She was aged 63
at the time of execution of the Will, Ex .. P-1 dated 19.6.1964. It has come
out in evidence that she was admitted to Hospital on 21.6.1964 and was
operated upon on 26.6. 1964. She was discharged on 12.7.1964. The tes-
tatrix died in Bangalore on 23.6.1968, i.e., four years after the execution of G
the WilL The first defendant, Mr. Emmanuel Joseph Vas, an Advocate by
profession, was 80 years old at the time of execution of the Will. He was
a chronic diabetic patient. His toes were amputated. He had his own
properties. He had executed a Will regarding his properties wherein
nothing was given to the plaintiff. The first defendant (husband) and
second defendant, a retired District judge are the executors of the Will. H
272 SUPREME COURT REPORTS [1996] SUPP. l S.C.R.

A They failed to take steps to obtain probate of the Will. The 3rd defendant,
sister of the plaintiff is unmarried. The 4th defendant, another sister; is
married and is in Bombay with family. The 5th defendant is the son of the
testatrix. He is in America since 1954. A citizen of U.S.A., he is admittedly
well off, in that country. He is not a beneficiary under the Will, Ex.P-1.
Though notice \Vas personally served on hi1n, he <lid nut enter appearance
B either in the courts below or in this Court. He did not contest the Will. It
is admitted by the 3rd defendant that the entire Will (Ex.P-1) is in the
handwritting of the testatrix, her mother. ft is a "holograph Will". The Will
(Ex.P-1) was in the custody of the first defendant. There are lwo attesters
to Ex.P-1. The first attester (PW-1) is Mrs. Gadre, admittedly, a frequent
c visitor to Bangalore and Hotel Terra Vera. The other attester is Mr.
Ferrnie, a retired Post-Master General, and a permanent board~r in the
hotel, Terra Vera. It has come out in evidence that Mr. Fermie, the other
attester was no longer alive when the suit came up for trial and so was not
examined. Apart from one of the attesters to the Will (PW-1), the plaintiff,
D examined herself as PW-2. Under the Will, Ex. P-1, the testatrix had given
e4ual shares to all the three daughters. It is evident from the evidence of
PW-1 that the plaintiff was not present when the Will was executed and
signed by the testatrix and the attestcrs. The defendants did not in fact
challenge that the Will was executed by the testatrix Mrs. Prinrose Mary
Vas. Their only attack was about the validity of the same - as one tainted
E by undue influence of the plaintiff.

5. The trial could framed the following five issues :

"1. Whether the plaintiff proves the due execution of the suit Will?

F 2. Whether plaintiff proves that the testator had the sound dispos-
ing state of mind to execute the said Will?

3. Whether the defendants prove the alleged undue influence and
that the Will is tainted by such influence?
G
4. Whether the Will is valid?

5. What relief'!

6. After discussion of the relevant evidence, the trial court entered
H the following findings :
,-
~
JOYCE PRIMROSE PRESTOR v. V.M. VAS 273

"Issue No. 1 : The plaintiff has proved due execution of the Will, A

Issue No. 2 : The plaintiff has proved that the testator had the
sound disposing state of mind to execute the said will;

Issue No. 3 : The defendants have failed to prove the alleged undue
influence nor have they proved that the Will is tainted by such B
influence;

Issue No. 4 : The Will is perfectly valid;

Issue No. 5: The plaintiff is entitled to the reliefs" she has sought."
c
7. We will now extract the contents of Ex.P-1, original Will executed
by Mrs. Primrose Mary Vas :

"This is the ]a,t Will and Testament of Mrs. Primrose Mary Va" wife
of Emmanue!Joseph Vas at present residing in "Terra Vera", St. Mark's
Road, Bangalore. I hereby appoint my husband Emmanuel Joseph Vas D
and Mr. Joseph Richard Nazereth as joint and several executors of this
my Will and Testament. Out of my money in the State Bank of Mysore,
in the State Bank of India and the Post Office Saving/< Bank in the
Shoolay Post Office, I bequeath Rupees Fwe Thousand to my daughter
Dulcie Alice Vas and Rupees Five thousand to my daughter Joyce
Primrose Preston. I bold shares in the New India Assurance Co., Ltd.
E
These I give to my daughter Vera Marie Vas. The rest of my money in
the State Bank of Mysore, the State Bank of India and the Post Office
Savings Bank I give to my daughter Vera Marie Vas. I bequeath my
real property "Terra Vera" on St. Mark's road in Bangalore with all the
furniture, crockery and cutlery it contains in equal shares to my three F
daughters Vera Marie Vas, Dulcie Alice Vas and Joyce Primrose
Preston. In witness whereof I Primrose Maiy Vas have this nineteenth
day of .Tune 1964 set my hand.

Sd. Primrose Mary Vas
G
[Ex.P-l(a)]

Signed by primrose Mary Vas in the presence of both of us
present at the same time and in th.e presence of each other.

Sd. (Mrs.) Olive Gadre-Ex.Pl(b)." H
274 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A 8. The main attack on the Will was pleaded by the first defendant.
Defendants 3 and 4 filed a joint written statement and took up the plea
substantially in conformity with the one taken up by the first defendant.
The gravamen of the charge against the validity of the Will runs as
follows :

B
It was the first defendant who purchased "Terra Vera" buildings in
1941 jointly in his name and in the name of his wife. Later, he conveyed
the property to his wife. He purchased necessary furniture, crockery etc.
for the hotel. It was without his knowledge or consent that his wife (Mrs.
Vas) made the Will. It was so made provisionally under peculiar cir-
c cumstances. Just before the admission of Mrs. Vas to the hospital for
operation, 3rd defendant who was at Bombay, was informed. The plainfiff
and her husband were staying with the deceased. At that time, when the
deceased admitted to the hospital and was not in a sound disposing state
of mind, there were ample opportunities for the plaintiff to get the Will,
especially when the other two daughters were absent. The deceased was in
D a disturbed state of mind. The plaintiff kept that Will herself and she
inserted it in the drawers of the first defendant's room sometime after the
demise of Mrs. Vas. The Will was found by the 3rd defendant who showed
it to the plaintiff and then, handed over the same to their lawyer, D.W. 3.
Till then, the first defendant was not aware of the same. The Will appeared
suddenly under peculiar circumstances in the first defendant's drawers.
E
According to the first defendant, it should have been inserted in his drawer
by the plaintiff herself. The plaintiff was well provided for and a separate
house was purchased for her. The deceased completely forgot about the
Will and subsequently expressed her intention contrary to the recitals in
the Will. According to the deceased, it was understood that Terra Vera
F should become the property of the defendants. It is thereafter, the central
front plot in the said property was given as a gift by the deceased to the
plaintiff. In these circumstances, the plea was that the Will is not valid and
cannot be considered to be the last Will and testament of the deceased
because she had subsequently, departed substantially from the intended
distribution of the property by that Will. Jn substance, the plea was that
G the plaintiff having got the Will when the deceased was about to be
admitted to hospital, kept it with her secretly and the Will came into
existence under suspicious circumstances.

9. After referring to the legal requirements envisaged in Section 58
H of the Indian Succession Act and Section 68 of the Indian Evidence Act
JOYCE PRIMROSE PRESTOR v. V.M. VAS 275

and the background afforded by various facts stated in paragraph 4 (supra), A
the trial court found the following :

Ex.P-1. Will, is in the own handwriting of the testatrix. It was attested
by PW-1, Mrs. Gadre and other attester, Mr. Fermie being dead, could not
be examined. ·Both the attesters were permanent boarders in Terra Vera.
The 3rd Defendant admitted in evidence that the Will is entirely in the B
handwriting of her mother and it bears her signature. It was she who
handed over the Will to DW-3, Advocate, for safe custody. DW-3 stated
that the deceased was one of his clients and had, in fact, got three gift
Deeds drafted by him, relating to the front portions of Terra Vera. PW-1,
stated that Mr. Fannie attested the Will in her presence and in the
presence of the testatrix and that Mrs. Vas was in a sound state of mind
c
at the time of the execution of the Will. She was not cross-examined on
that score. Indeed, it was the first defendant who called PW-1 for attesta-
tion and that statement was also not challenged in cross-examination. The
above crucial aspects raise a strong presumption that Ex. P-1 is a genuine
document. Referring to the two statements pointed out by PW-1 in her D
statement that Mrs. Vas wrote the caption appearing above the signatures
of the attesters, and that Mrs. Vas had written and signed the Will by the
time they put their attestations, the trial court held that PW-1 has pointedly
stated in chief-examination and also clarified in re-examination that they
pnt their attestations only after Mrs. Vas had signed the Will and the
writing cif the statement in the caption does not affect the execution of the E
Will, and.is not a serious discrepancy. The Court held that it was satisfied
tha.t th_e_Will is duly executed.and.attested, and it was also established from
the evidence. th~t Mrs. Vas was in a sound state of mind when making out
the Will. The trial court also found that the attesters and the testator
signed the Will in the presence of each other. Referring to the suspicious F
circumstances pointed out by the defence, namely, (1) the husband and son
were not provided anything; (2) that the Will was attested by strangers and
not by close friends; (3) that Mrs. Vas wrote the Will on the eve of her
operation, the trial court held, thus :

(1) The husband was aged 80 years and had his own properties. G
The son was well settled and was in U.S.A. ever since 1954. Mrs.
Vas wanted to give her properties to her three da~ghters only.

(2) PW-1, Mrs. Gadre was frequently staying in Terra Vera and
she was attached to Mrs. Vas, as is seen from her conduct before H
276 SUPREME COURT REPORTS (1996] SUPP. I S.C.R.

A and subsequent to the execution of the Will and Mr. Fermie was
also a permanent boarder in Terra Vera, and at the time of the
execution of the Will, these two were the only permanent boarders
in the Terra Vera Hotel.

(3) 3rd defendant herself admitted that Mrs. Vas was not having
B any serious ailment and the operation she underwent was a simple
one, and the deceased was active till the very last. Coupled with
the fact that it was the 3rd defendant who found the Will in the
drawer of Mr. Vas, kept it with her, and later, handed over it to
DW-3, the trial court pointed out that there is absolutely no
c suspicious circumstance surrounding the Will. Proceeding further,
the trial court also observed that the burden of proof is on the
defence to show that the Will was got up by undue influence by
the plaintiff and, it was not so shown. The plaintiff was not aware
about the existence of the Will, nor was Mrs. Vas in a position to
D be dominated by one of her daughters, the plaintiff. On the other
hand, the fact that the testatrix gave her property in equal shares
to her daughters proved positively that she was not under any
undue influence. The plaintiff was not even present when the Will
was signed by Mrs. Vas and attested by two attesters and the entire
E Will was in the own handwriting of Mrs. Vas. These facts will show
that no undue influence, as alleged, could be exercised. There was
absolutely no material in the evidence of DW-1, DW-2, DW-4 and
DW-5 which will affect the genuineness of the Will, Ex.P-1, ex-
ecuted by Mrs. Vas.
F
10. The High Court in the appeal filed by defendants 3 and 4,
reappreciating the evidence, the circumstances and the probabilities,
formed 11 its own impression' about the evidence in the case, and "taking and
over all picture of the entire case as revealed in the evidence" held that it
was "constrained to observe 'that this case of the alleged Will is shrouded in
G suspicion. 11 •

11. We heard counsel. As stated in "The law of Wills in India and
Pakistan" by Mantha Ramamurthi, at page 81, the general principles
governing the presumption of due execution and attestation, in the case of
H Wills are:
JOYCE PRIMROSE PRESTOR v. V.M. VAS 277

"If a will appears on the face of it lo have been duly executed and A
attested in accordance with the requirements of the Act, the maxim
11
omnia proe sumuntur rite esse acta," applies, unless it is clearly
proved by the attesting witnecses that the Will is not in fact duly
executed. The Court of Probate has long been accustomed to give
great weight to the presumption of due execution arising from the B
regularity ex facie of the testamentary paper produced where no
suspicion of fraud has occured.

The maxim 11 0mnia Proe sumuntur rite esse acta11 is an expres-
sion in a short form, of a reasonable probability, and of the
propriety in point of law on acting on such probability. The maxim
c
expresses an inference which may reasonably be drawn when an
intention to do ~olne formal act is established. In Blake v. Knight
Sir Herbert Jenner Fust observed "Is it absolutely necessary to have
positive affirmative testimony by the subscribed witnesses that the
Will was actually signed in their presence, or actually acknow- D
!edged in their presence ? Is it absolutely necessary, under all
circumstances that the witnesses should concur in stating that these
acts took place ? Or is it absolutely necessary, where the witnesses
will not swear positively, that the Court should pronounce against
the validity of the will. I think these are not absolute requisites to E
the validity of the will."

Consequently, "where the evidence of attesting witnesses is
vague or doubtful or even conflicting the Court may take into
consideration the circumstances of the case and judge from them F
collectively whether the requirements of the Statute were complied
with; in other words the Court may, on consideration of other
evidence or of the whole circunzstances of the case, come lo the
conclusion that their 'recollection is at fault, that their evidence is
of a suspicious character, or that they were willfully misleading the G
Cowt, and accordingly disregard their testimony and pronounce
in favour of the will."

(pages 81-82)

(emphasis supplied) H
278 SUPREME COURT REPORTS [1996] SUPP.1 S.C.R.

A The author has also categorised the various instances where the maxim has
been applied in different cases - (1) absence of evidence; (2) some attestors
speaking for and some against the will; (3) attestors honest but mistaken
and (4) attestors giving false evidence.

12. While the presumption in the case of ordinary Wills is as stated
8 above, in the case of "holograph Wills", the presumption is all the more - a
greater presumption. Ex.P-1 is a "holograph will''. It is'one which is wholly
in the handwriting of the testator. The Calcutta High Court in Ajit Chandra
Majumdar v. Akhil Chandra Majumdar, AIR (1960) Cal 551 at p. 552)
stated about such a Will, thus :
c "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
D holograph will than where his signature alone appears to either a
typed script or lo a script wrillen by somebody else."

(emphasis supplied)

E The writing of the Will and Signature of the testator are admitted. Ther.e
is also due and proper attestation in accordance with the relevant statutory
provisions. No suspicious circumstance appears on the face of the docu-
ment, 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.
F
13. Defendants have urged a few suspicious circumstances and have
alleged that the Will was executed by the undue influence exercised by the
plaintiff. Notwithstanding the high degree of presumption available in the
case of the holograph Will, which on the face of it, appears to be properly
G and duly executed and attested, have the defendants let in cogent evidence
to off set the said presumption and/or have succeeded in proving the
special plea set up by them, falls for our consideration. In our considered
view, the answer can be only in the negative.

14. We were taken through the judgments of the Courts below and
H also the evidence of witnesses. We should say that the entire approach
JOYCE PRIMROSE PRESTOR v. V.M. VAS 279
A
made by the High Court, the way it scanned the evidence with minute
particulars, reappreciated the evidence, and substituted its "own impres-
sion", were misconceived and misplaced. The High Court referred to the
decisio11s of this Court laying down the principles to he borne in mind as
to how a Will should be proved in a Court of law, especialli when there
are suspicious circumstances surrounding the facts of the execution of the B
Will. Reference was made to the decisions in H. Venkatachala Iyenger v.
B.N. Thinunajamma, AIR (1959) SC 443, Rani Pumima Devi and another
v. Kumar Khagendra Narayan Deb and allotlw; AIR (1962) SC 567,
Shashikumar Banerjee and Others v. Subodh Kumar Banerjee and Others,
AIR (1964) SC 529, Ramchandra Rambux v. Champabai and Others, AIR C
(1965) SC 384, Surelldra Pal and Others v. Dr. Mrs. Saraswati Arora and
anotlw; AIR (1974) SC 1999 and Smt. Jaswant Kaur v. Smt. Amrit Kaur
and Others, AIR (1977) SC 74. The general principles which govern the
proving of a Will are stated in the aforesaid decisions. Of the above, the
decision reported in Shashikumar Banerjee's case AIR (1964) SC 529 is by D
the Constitution Bench. Therein, in paragraph (4), the law has been
succinctly stated thus at page 531 :

"The principles which govern the proving of a will are well settled;
(see H. Venkatachala Iyengar v. B. N. Thimmajamma, (1959] Supp
1 SCR 426 : AIR (1959) SC 443 and Rani Pumima Devi v. E
klzagendra Narayan Dev, [1962] 3 SCR 195 : AIR (1962) SC 567.
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. The onus of proving the will is on the propounder F
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 G
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 H
280 SUPREME COURT REPORTS (1996) SUPP. I S.C.R.

A 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 he other iridic.:ations in the \viii to
show that the testator's mind \\'as not free. In such a case the court
would naturally expect that all legitimate suspicion shmrld be
completely removed before the document is accepted as the last
B
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 satis-
factory evidence. If the propounder succeeds in removing the
c suspicious circumstances the court would grant probate, even if
the will might be unnatural and might cul off wholly or in part near
relations . .......... .''

(emphasis supplied)
D
15. In applying the above general principles to particular cases, the
nature of the Will, the pleadings of the parties in the case, facts admitted
or proved and the presumptions available in law, will have to be carefully
given effect to. The case of a "holograph Will" which is admittedly in the
E handwriting of the testator, is a special case which will require a different
approach in considering the evidence in the case to find whether the Will
has been duly executed and attested. The approach to be made in such
cases has been stated by the Constitution Bench in Shashikumar Banerjee'.i
case, (supra) at page 532 paragraph (5). In that case, the Court referred
to certain undisputed preliminary facts as follows : The testator, a well-
F known 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 hand-
writing of the testator, corrected in various places and corrections were
G 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
H made in the case of a "holograph Will", thus :
JOYCEPRIMROSEPRESTOR v. V.M. VAS 281

"Further the fact that the will is a holograph will and admittedly A
in the hand of the testator and in the last paragraph of the will the
testator had slated that he had signed the will in the presence of
the \Vitnesses <:1nd the \Vitnesscs had signed it in his presence and
in the presence of each other raise strong pre.nunption of its
regulwity and of its being duly executed and attested. On these facts
B
there is hardly any suspicious circumstance attached to this will
and it will in our opinion require vc1y little evidence Lo 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 C
testamentary capacity right upto March 1947, even though he was
an oldman of about 97 when he died on April 1, 1947........ There
is nothing to show that the dispositions were not the result of the
free will and mind of the testator. Further, the propounders (name-
ly, the appellants) had nothing to do with the execution of the will D
and thus there are really no suspicious circumstances at all in this
case. All that was required was to fonnally 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 circun1stances that we have to consider the evidence of the
two attesting witnesses . ................. n E

(emphasis supplied)

16. In the judgment under appeal, the High Court noticed the
aforesaid decision of this Court inShashikumar Banerjee's case (supra) and
has quoted the following passages in the said case : F

"In the case of SHASHI KUMAR BANERJEE AND OTHERS
v. SUBODH KUMAR BANERJEE, AIR (1964) SC 529. His
Lordship Justice Wanchoo, has laid down: .......... .'Where however
there are suspicious circumstances, the onus is on the propounder G
to explain them to the satisfaction of the court before the court
accepts the Will as the Will as genuine ............ "'

".......... in the case of SHASHI KUMAR BANERJEE AND
OTHERS v. SUBODH KUMAR BANERJEE AND OTHERS,
Al.R. (1964) S.C. 529. Therein, His Lordship, Justice Wanchoo, J., !H
'
282 SUPREME COURT REPORTS [1996) SUPP. 1 S.C.R.

A has observed in para 5 of the judgment thus :

"The entire Will is in the handwriting of the testator and has
been corrected in various places and the correction~ have
been initialled by the testator.. .......... On these facts there is
hardly any suspicious circumstances attached to this Will and
B it will in our opinion require very little evidence to prove due
execution and attestation of the Will."

After quoting the above truncated passages and without adve1ti11g at all to
the cmcial passages, indicating as how the evidence of the attesting wit-
c nesses should be evaluated, in the case of 'holograph Wills' (extracted
hereinabove ), the learned Judges of the High Court stated, in our opinion,
wrongly, that the facts of this case are entirely different and so, the
appreciation of the evidence of the case is to be done on the "unique
features' of each case.
D
17. We are afraid that the High Court failed to give effect to the
strong presumption of regularity and due execution and .attestation of the
holograph Will, in the instant case. Admittedly the Will, Ex.P-1, is in the
handwriting of the testator or spoken to by the 3rd defendant herself. The
E facts in this case in a great measure conform to the broad facts and
circumstances detailed in the case of "holograph will" in Shashi Kumar
Baneljee's case (supra). In this case the 3rd defendant admitted in cross-
examination that her mother, Mrs. Vas "was active till the last" and that
"she used to go to Mass every morning." She further stated that the Will 'is
in the hand"Titing of the testator'. She stated. "I see Ext. P-1. This is the
F Will. It is entirely in my mother's handwriting. I am fully acquainted with
her handwriting. Ext.P-l(a) is the signature of my mother." The evidence
of PW-1, one of the attesters, is categoric that the Will was attested by her
and a co-attester in the presence of the testatrix and that the testatrix was
in a sound state of mind at the time of execution ot the Will. DW-3,
G Advocate by profession, stated - "! am acquainted with the signature and
writing of Mrs. Vas (Testator). I see the Will Ext.P-1. The writing in
Ext.P-1 as well as the signature are of Mrs. Vas." PW-1 stated that the
propounder (the plaintiff) was not present when Ex.P-1, the Will, was
signed and executed. By Ex.P-1, all daughters have been given equal shares
H and the document cannot be said to be unnatural. In these circumstances,
i

JOYCE PRIMROSE PRESTOR v. V.M. VAS 283

a strong or high degree of presumption of the regularity and of due A
execution and attestation of the Will, arose. As stated by this Court in
Shashi Kumar Banerjee's case (supra), it is in this background the evidence
in the case including that of the attesting witnesses should have been
examined and what was required was only to fonnally prove the Will, and
very little evidence to prove due execution and attestation of the Will, was B
alone called for. The High Court totally ignored the above vital aspects.
On the other hand, the High Court opined that the facts of this case are
entirely different from those of Shasi Kumar Banerjee's case (supra), and
the unique features should be scanned, in great detail. In the process, the
High Court reappreciated the entire evidence, through a microscope, as
it were, and indulged in surmises and ccnjectures.
c
The question that arose for consideration in this case, is largely one
of fact, the decision of which depended upon the appreciation of the oral
evidence adduced in the case. The weight or importance that should be
given to the finding of the trial Judge who had occasion to watch the D
demeanour of the witnesses and assess their credibility and the restraints
that should be observed by the Appellate Court in such cases, have been
stated by this Court in more cases than one, vide Sarju Pershad Ramdeo
Sahu v. Jwaleshwari Pratap Narain Singh and Others, AIR (1951) SC 120,
Madhusudan Das v. Smt. Narayani Bai and Others, AIR (1983) SC 114, Etc. E
It need hardly be stated that the onus is on the appellant to show that the
judgment appealed against is wrong. It is for the appellant to show where
the assessment of the court below has gone wrong and not merely seek a
reassessment of the evidence. We regret to note that the High Court in the
instant case, has not at all borne in mind the above salient principles of F
law in reappreciating the entire evidence in this case through a microscope,
as it were, and drawing its own ninferences11 and 11 impressions 11 •

18. We shall only quote a few passages from the judgment of the
High Court to show how the approach of the High Court was palpably
wrong, which vitiated the ultimate conclusion reached by it. G

"Admittedly, Mrs. Vas was in her 63rd year of age at the time she
wrotr out Exhibit P-1. It was on the eve of her operation. She was
suffering from high blood pressure and hospital records would
show that she was suffering from uterus complaint for 4-5 years. H
284 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R ..

A It is probable, therefore, that she was in ne1Vous tension on the date
when the Will was written out by her and obviously, Mrs. Preston
was in a position, being her own daughter and a person having
already undergone a similar operation, to successfully dominate
over Mrs. Vas and prevail upon her to write out the Will. This
circumstance cannot be viewed in its isolation. It is to be viewed
B
with the other circiunstances a1ising in this case. 11

"That being so, it is nonnally not expected of Mrs. Vas to execute
a Will, if at all, without the knowledge and consent of Mr. Vas in
this connection, the trial Court has rightly observed that the form
c of the Will and the language used would clearly indicate that the
draft was prepared by a lawyer. The trial Court however, has
further slated, that in all probability, Mr. Vas, husband of the
testatrix, must have helped her in getting the draft prepared and
that he must have known about the execution of the Will by his wife
Mrs. Vas. Though at the first blush it looks probable, the evidence
D on record does not support such an inference."

"The defendants have examined D.W. 1 Mrs. Susala Heredia, D.W.
2 Mr. M.A.J. Vas Naik, D.W. 3 Mr. George D' Costa and D.W. 4
Mr. F.J. Heredia, in addition to the evidence of Miss Vera Vas.
E All of them have specifically stated that Mr. Vas told them that he
was unaware of the alleged Will executed by his wife and that it is
his daughter Mrs. Joyce Preston who had managed to get such a
Will attested and planted in his chest drawer."

"If really Mrs. Vas executed a Will and got it attested as is made
F out by the propounder, it is probable to expect that she would have
kept the Will with her husband Mr. Vas who was named as one
of the executors in the Will."

"In the circumstances the sworn statement of Vera Vas that She
did not know anything about the Will till Mrs. Preston told her
G about the Will after the death of her mother is probable and
believable."

"........ the surrounding circumstances discussed by us above, render
it probable that the incomplete Will was in her possession and
H subsequently, after getting the anestation done, she induced Vera
JOYCE PRIMROSE PRESTOR v. V.M. VAS 285

Vas to search for it and after some days, she placed it in her A
father's chest drawer and subsequently, when it was found by Vera
Vas, she rushed with the Will and showed it to Mrs. Preston and
subsequently, told it to D.W. 3, her mother's lawyer, to probate
the Will."

"It is in this context that we have to appreciate the evidence of Mn. B
Gadre, the alleged attester of the Will."

"The submission of the learned Counsel for the appellants that it
was Mrs. Preston who got the Will written by her mother as per
the draft got prepared by her, took custody of it and got sub-
sequently the attestation of Mrs. Gadre and one other witness,
c
cannot be brnshed aside as groundless. The strong and reasonable
suspicion arising in this context is not cleared by the propounder so
as to satisfy the conscience of this Court. The trial Court has
entirely missed to appreciate this aspect."
D
"....If really Mr. Vas had made a Will as per Exhibit P-1, nothing
could prevent her from changing the Will or from revoking it. She
kept quiet obviously because there was no completed will. There
cannot be any Other plausible reason for it."

"The learned Counsel rightly pointed out that when she wanted to E
execute a gift deed in favour of her daughters, she approached D. W.
3 Mr. D'Costa, an Advocate and got the gift deeds written and
registered with his assistance. Becides, she also told D.W. 3 that
she wanted to make a Will. Hence, the fact that she herself wrote
out the draft of the Will and singed it would further show that it F
was at the imp01tunity and pressure of her daughter who, perhaps
brought the draft to her and that Mrs. Vas copied it out though she
was cautious enough not to get it attested. 11

"Thus, taking an over all picture of the entire case as revealed in
the evidence, we are constrained to observe that this case of the G
alleged Will is shrouded in suspicion."

(emphasis supplied)

. 19. We have already held that Ex.P-1, "holograph Will" and the facts
of the present case are substantially similar to the one in Shashikumar H
286 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A BanC1jce's case (supra). All that was required was to formally prove Ex.P-1
(Will). The evidence of PW-1, the attester, which has been accepted by the
trial court, is categoric and she stated in chief-examination, thus :

"I know the petitioner. I had seen her mother. I know her from
1958. The mother of the petitioner was running a boarding & lodging
B house in St. Marks Road. The name was "Terra Vera" hotel. I
stayed in her hotel on many occasions approximately 2-1/2 months
each time, when l came to Bangalore on holiday - During June
1964. I was staying in that hotel with my husband. At that time I
was asked to attest a Will executed by the mother of the petitioner,
c Miss P1imrose Mary Vas executed that Will. Her husband E.J. Vas
asked me to be present and sign the Will. Mr. Vas, Mrs. Primrose
Vas, myself and the other attesting witness are Mr. Firfmie were
11
present.

"I see Ex. P-1. It is the last Will of Mrs. Primrose Mary Vas. The
D testator has put her signature at Ex.P- 1(a) in my presence. I have
attested Ex.P-1, Will, at Ex.P- 1(b). The other attestor D.P. Fermie
put his attestation after my attestation in my presence and in the
presence of the testator. The deceased testator was peifectly fit
mentally and physically when she executed Ex.P-1, Will. The entire
Will Ex.P-1 is in the handwriting of the testator herself. The husband
E
of the testator was also present when the deceased executed of
Ex.P-1. The husband of the testator called me to be present at the
time of the execution of Ex.P-1."

(emphasis supplied)
F
Nothing was bought out in cross-examination to discredit this witness. The
attesting witnesses were frequent visitors to Bangalore and permanent
boarders in hotel 11Terra Veran. There was absolutely no cross-exaniination
on the vmious aspects stated by the witness regarding the due execution and
attestation of the Will, as extracted hereinabove. The trial Court adverted to
G the above crucial aspects arising in this case as also the admission by the
3rd defendant that the Will is entirely in the handwriting of her mother,
that it bears her signature and She found the Will in her father's drawer
and handed over Ex.P-1, Will, to D.W. 3, Advocate. This fact is also
corroborated by D.W. 3, Advocate. The trial Court laid emphasis on such
H crucial aspects and held that the Will - a holograph Will herein - was duly
JOYCE PRIMROSE PRESTOR v. V.M. VAS 287

executed and attested and Mrs. Vas was in a sound state of mind when A
Ex.P-1, Will was executed. The said finding is based on a proper applica-
tion of the law and the unassailable evidence available in this case. So also,
the trial Court, after adverting to the pleas urged by the defence, held that
there are no suspicious circumstances surrounding the Will and that there
is no evidence to show that the plaintiff exercised undue inl1uence over
B
Mrs. Vas. Such finding based on proper application of the law and the
evidence available in the case, was reversed by the High Court by a totally
wrong approach to the question and without giving effect to the "strong
presumption"available in the case regarding the presumption of regularity
and due execution and attestation of the Will Ex.P-1.
c
20. We are, therefore, constrained to hold that the judgment
rendered by the High Court under appeal, is totally erroneous and deserves
to be set aside. We hereby do so. The judgment of the High Court of
Karnataka dated 11.7.1987 is hereby set aside and this appeal allowed. The
judgment of the trial court is restored. Since this litigation is between near
relations, in the peculiar circumstances of this case, we pass no order as D
to costs.

S.M. Appeal allowed.