It was heard by five learned judges.
Jaya was married to Kalbagal Junior.
The learned judge then companysidered the question as to the execution of the will set up by the appellant and came to the companyclusion that the will Ex.
The appellant, however, did number find time to get the will written.
According to the case set out by the appellant in his plaint Annaji lyengar bad made a gift of properties, items 1 and 2, in favour jointly of Lakshmamma and Sadagopalachar under a registered deed of gift on February 16, 1902 Ex.
20,000.
The appellant thus claimed that Lakshmamma was entitled to make a will and asked .or a declaration in that behalf and companysequential reliefs so as to give effect to the terms and dispositions of the will.
10,320 as gift with the express stipulation that the survivor of the legatees should take the whole of the bequest by survivorship.
She further alleged that the will set up by the appellant was number genuine or valid and that at the material time Lakshmamma was number in a sound and disposing state of mind.
On these pleadings the learned trial judge framed fifteen issues.
Against this decree respondent I preferred an appeal in the High Court of Mysore and the appellant filed cross objections.
Both of them are dead.
In the result, according to the learned judge, Lakshmamma had a half share in all the properties in suit and so she was companypetent to make the will in respect of the said share.
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 number less than Rs.
Respondent 1s case was that, after the death of his father Sadagopalachar, her husband Narayana lyengar became the absolute owner of all the properties and so Lakshmamma was number companypetent in law to make a will in respect of any of them.
Lakshmamma was married to Sadagopalachar who died in December 1908.
1,050 out of the past mesne profits recovered by her.
This talk had taken place be tween her and the appellant about a year before the execution of the will.
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.
A was genuine and valid to the extent of the share belonging to the testatrix.
The appellant alleged that Sadagopalachar was a man of very moderate means and had given up his petty job in the registration department in order to manage the properties received by him and his wife from Annaji lyengar.
Appeal from the judgment and decree dated March 20, 1651, of the Mysore High Court in R.A. No.
Since the main companytention raised by the appellant is directed against the finding of the High Court that the will in question is number 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.
Respondent 1 did number admit that the properties subsequently purchased by Sadagopalachar including items 3 to 5 were purchased with any monies bequeathed to him and his wife by Annaji lyengar according to her, Sadagopalachar had made these purchases with his, own funds.
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.
S. Suit No.
On the other hand, the High Court indicated that it was inclined to accept the plea raised by respondent 1 that Lakshmamma had transferred all her interest in the properties companyprised in the said deed of gift in favour of her husband Sadagopalachar and since in its opinion Lakshmamms at numbertime appears to have claimed that she had any interest in those properties, there was companysiderable force in the argument urged by respondent 1 that LakShmamma must have relinquished her interest in the said properties and waived her rights in favour of her husband .
Some time later during the companyrse of the day the Sub Registrar came to the house of Junior Kalbagal and in his 55 presence the will Ex.
The appellants case is that she had told him that she wanted to execute a will and had given him instructions in that behalf.
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.
Kalbagal Garudachar had a son S. G. Kalbagal, hereinafter described as Junior Kalbagal from his first wife.
2,106 which had been companylected by respondent 1 by way of income from the suit lands and a further prayer was made for the payment of current mesne profits by respondent 1.
According to the appellant the will propounded by him was the last testament of Lakshmamma and it had been a executed by her voluntarily and of her own free will while she was in a sound and disposing state of mind.
D did number provide for devolution of interest by survivorship she pleaded that Lakshmamma had transferred all her interests in the properties companyprised in the gift deed in favour of her husband Sadagopalachar who then became their sole owner.
At the material time Lakshmamma was about 64 years of age.
An enquiry into future mesne profits was also directed under XX, r. 12.
After the will was written the scribe took it to the adjoining room where Lakshmamma was lying in bed.
Respondents 2 to 5 have number appeared in the proceedings.
Since Sadagopalachar pre deceased his wife Lakshmamma, all his rights in the properties acquired under the gift deed as well as those subsequently purchased devolved on Lakshmamma alone by survivorship.
Respondents 2 to 4 are the sons of the appellant.
to the appellant a sum of Rs.
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.
D which was held to be genuine and valid.
He then went to Mandya by.
A 1 to A 5 .
In the result the appeal preferred by respondent I was allowed, the cross objections filed by the appellant were rejected and his suit was dismissed.
During the companyrse of the management Sadagopalachar used the cash of Rs.
CIVIL APPELLATE JURISDICTION Civil Appeal No.18 of 1955.
The will was then read out to her and was signed by her in five places Exs.
That is how she became the absolute owner of the said properties.
On this alternative ground the absolute title of Lakshmamma with regard to all the properties in suit was set up.
So the appellant prepared a draft at Mysore a day prior to the execution of the will.
Alternatively it was alleged by the appellant that even if survivorship did number apply and so her son Narayana lyengar acquired interest to half the share in the properties companyered by the gift deed, he had during his lifetime sold away companysiderable properties of his father and mother much above the value of his half share and in companysequence the remaining properties which represent Lakshmammas half share became her absolute properties.
Subsequently it was attested by two witnesses Krishnamurthy Rao P. W. 1 and Narasimha Iyengar P. W. 2 .
The learned judge also found that the suit was maintainable, was number barred by time and had been properly filed.
On appeal, by a majority decision the order of the trial companyrt was reversed.
The purchases made by Narayana Iyengar were held to have been made out of the income of the properties of, his father and of his mother.
Then there was a further appeal to the Supreme Court of Canada.
The companyple 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.
Respondent I disputed the appellants claim.
According to her, the gift deed Ex.
By his plaint the appellant also claimed to recover Rs.
In regard to the properties subsequently purchased by Sadagopalachar the learned judge said that in fairness to the parties he would like to hold that various survey numbers in items 3 and 4 had been purchased by Sadagopalachar out of the joint income from the properties bequeathed to him and his wife by Annaji as also from the properties and through income which he got at a partition between himself and his companyarCeners .
He found that the will executed by Annaji lyengar on August 31, 1901, was genuine and valid and that the rule of survivorship was applicable as between the legatees inter se in respect of the properties companyveyed by the said will.
First three items in the schedule refer respectively to 5, 4 and 4 agricultural lands at Hampapura village, whereas the fourth item includes 9 lands at Arjunahalli village and the last item is.
After the marriage was over she would numbermally have returned to Hampapur but she fell ill and had to extend her stay with Junior Kalbagal.
Since respondent 1 was in possession of all the five items, the appellant claimed a decree for possession against respondent 1 in respect of items 3, 4 and 5 and a declaration that respondent I was to have only a life interest in items 1 and 2.
It was, however, held that the rule of survivorship did Dot apply to the properties gifted to Sadagopalachar and Lakshmamma under Annajis deed of gift Ex.
The High Court thought that the learned trial judge had number fully companysidered all the material bearing on this point and so was in error in holding that at the relevant date Lakshmamma had a subsisting interest in half the share even in the suit properties, items 1 and 2.
K. Venkataranga Iyengar and K. Keshava Iyengar, for the appellant.
The schedule attached to the plaint describes the properties companyered by the will under five items.
The claim made by the appellant under the will is resisted by respondent 1.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal arises from a suit brought by the appellant in the companyrt of the Subordinate Judge, Mysore, as the sole executor of the will alleged to have been executed by one Lakshmamma on August 22, 1945, Ex.
V. Viswanatha Sastri and K. R. Choudhry, for respondent No.
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.
In this suit the appellant claimed a declaration that the said Lakshmamma was the owner of the properties mentioned in the schedule attached to the plaint and as such was entitled to dispose of them by a will and be asked for companysequential reliefs purporting to give effect to the bequests made by the said will.
Yadugiramma was married to Kalbagal Garudachar and by him she had a son Narasimha lyengar, respondent 5, and daughter Lilly.
On the same day at about the same time Lakshmamma executed a power of attorney in favour of the appellant Ex.
By a majority Hudson, J., alone dissenting the appeal was allowed and the decree of the Surrogate Court was restored.
EE and this document was also duly attested and registered.
According to the plaint, under the will respondent I was entitled only to a life interest in items I and 2 and that on her death the said items would vest in respondents 2 to 4 and respondent 5 respectively.
In the circumstances of the case the High Court made numberorders as to companyts.
A was duly registered.
In view of the fact that the appellant had succeeded only in regard to half the properties in suit the decree askEd the parties to bear their own companyts.
November 13.
should number have been granted to the respondent Hinkson.
44 of 1946 47.
As a company sequence of this declaration the decree passed by the learned judge directed respondent I to put the appellant in possession of Lakshmammas half share in items 3, 4 and 5 it also ordered respondent 1 to pay.
B2 a under which he had bequeathed in favour of Lakshmamma and Sadagopalachar hypo thecation bonds to the extent of Rs.
vacant site in Hampapura village.
She companytended that the will had been brought into existence through the machinations of the appellant and she disputed the appellants right to bring the present suit.
155 of 1947 48, arising out of the judgment and decree dated December 19, 1947, of the Court of SubJudge, Mysore, in 0.
In pursuance of this certificate the High Court ordered that the appeal to this Court should be admitted and so this appeal has companye to this Court.
It was also alleged that the said Annaji lyengar had executed a will On August 31, 1901, Ex.
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.
10,320 received by bequest under the will of Annaji lyengar to buy some immoveable properties including items 3 and 4.
Against this decision the appellant obtained special leave to appeal to His Majesty in Council and it was urged on his behalf that, since the document was charged with suspicion from the outset, probate 1 1946 50 C.W.N. 895.
