Sir John Beaumont:-

This is an appeal from a judgment and decree of the High Court of Judicature at Madras, dated 26th August 1943, which reversed a judgment and decree of the Court of the Subordinate Judge at Amalapuram, dated 27th September 1940.

[2] On 9th March 1938, respondent 5 as plaintiff brought a suit for partition against his father, defendant 1, his mother, defendant 3 who is respondent 1, and his elder brother, the appellant, defendant 2. On 19th February 1940, whilst the suit was pending, the father died, leaving him surviving, his widow, respondent 1, his two sons, the appellant and respondent 5, and four daughters, respondents 2, 3, 4 and 6. The daughters were brought on record as the legal representatives along with the widow of the deceased.

[3] Four days before his death, namely, on 15th February 1940, defendant 1 (who will hereinafter be referred to as "the testator") made a will which, if valid, affects the shares in which the interest of the testator in the joint family property will be divisible between surviving members of the family. The appellant challenged the fact of the execution of the will and alleged, in the alternative, that the testator was not of testamentary capacity when he made his will. The Subordinate Judge raised an issue: "Whether the will set up by defendants 3 to 7 is true, valid and binding." In answer to the issue he held that the execution of the will was proved, but that it was not proved that the testator was in a sound disposing state of mind, and that the will was not valid and binding. In appeal the High Court agreed with the finding that the will was duly executed, but disagreed with the view of the lower Court as to the testamentary capacity of the testator, and made a declaration that the testator was in a sound disposing state of mind and that the will was valid and binding.

[4] The will was in the following terms :

"Will executed and given on 15th February 1940, by Venkatapati Somayajulu Garu's son Jabdatual Yakaran Sree Duvvuri Suryanarayana Somayajulu, Baphyat, Bashand Zamindar Garu, Brahmin, Zamindar, resident of Gangalakurru.

I am now about 65 years old. From the past about tour years shivering and palpitation have set in in my body. Now, on account of a little paralysis, shivering of the hand has also set in. Apprehending as to what the future might be, I have made the following arrangements regarding the provisions to be given effect to after my lifetime in respect of all my movable and immovable properties.

I have two sons named Suryanarayanamurti and Venkatapati Somayajulu, four daughters named. Garimella Seethamma, Akella Seshamma, Challa Kameawaramma and Garimella Annapurnamma and a wife named Suramma.

My son, Venkatapati Sumayajulu filed the suit, O. S. No. 9 of 1938 on the file of the Sub-Court, Amalapur, against me and against my son, Suryanarayana, for partition of the family properties. In the said suit, my elder son and I filed (written) statement and are contesting the suit. Without prejudice to my contentions in the said suit some lands have been put in my possession. For partition of the remaining lands and the movable properties, the suit is being adjourned for trial. While so, as the disease has been gradually growing in my body, I have thought that, in any event it would be good to make arrangements as here under and have executed this will making provisions as described hereunder.

That, out of my share of the immovable properties, my eldest daughter, Garimella Seethamma, shall get land of the extent of 4 acres, with life interest, the second daughter, Akella Seshamma, shall get land of the extent of 4 acres, the third daughter, Challa Kameswaramma, 2 acres of land and the fourth daughter, Garimella Annapurnamma, 6 acres of land; that after my lifetime, my wife, Suramma, shall give the lands of her choice as aforesaid that, out of the said lands, the land that may be given to Garimella Seethamma, shall after Seethamma's lifetime, pass to my elder son, Suryan