The onus of proving the due execution and attestation of a will lies on the propounder, and the onus of proving undue influence or coercion lies on the caveator.

MISHRA, J.

A learned single Judge of this Court has ordered for grant of probate of a will. One S. P. Shanmugha Mudaliar was a businessman in Madras. He executed a registered will on 26-5-1971 in the presence of witnesses making certain dispositions of his properties. On 2-12-1973 he executed a codicil under which he appointed the plaintiffs as the executors of the will. The plaintiffs/respondents then applied for probate. The eldest son of Shanmugha, however, disputed the will. According to him, his father who was aged about 70 years at the relevant time, was suffering from cataract, kidney and heart trouble. The 1st plaintiff was looking after the business of the father who was solely dependent on him. The first plaintiff thus was in a position to dominate his father and was exercising undue influence and coercion. The will and the codicil, according to him, were executed by Shanmugha only under undue influence and coercion and not out of his own free will or consent or in a sound disposing state of mind. He also maintained that the will was unnatural and artificial as the eldest son has been practically disinherited.

2. In the course of trial it, however, transpired that Shanmugha had two wives. When he executed the will under Ex. P. 2, Shanmugha possessed considerable wealth and properties. Besides, one of the two wives (2nd wife) was alive at that time and he had three sons and seven daughters. The will, Ex. P. 2, was attested by three witnesses besides the scribe. The facts which are not in dispute and are noticed by the learned single Judge in this behalf are that the first attestor was none else than a leading lawyer of this Court, the other was his clerk who had written and attested the will. Besides, however, Mr. Ramamurthy Iyer, learned Advocate and Rama Rao, his clerk, there were two other persons, P.Ws. 2 and 3 who had attested the will.

3. The plaintiffs examined two attesting witnesses, P.Ws. 2 and 3 as the other two, namely, the learned Advocate and his clerk were dead. P.W. 2 Ramachandra Chettiar is a businessman having been assessed to income-tax, wealth-tax and corporation tax. He claimed to know the testator for about 35 years. His evidence has been considered by the learned single Judge in these words :

"P.W. 2 is running a big fruit stall at Madras which is his ancestral business, and according to him, late Shanmugha was his customer for decades. He would then state that late Shanmugha expressed his desire to execute a Will and requested his presence. Accordingly, the testator sent his car to the residence of P.W. 2 and took him to his place. On a Friday at about 9-30 a.m. P.W. 2 went to the testator's house and the Advocate's clerk, Rama Rao, was there. Shortly thereafter, late Advocate Mr. R. Ramamurthy Iyer came to the house of Shanmugha with the will and he read over the will and explained the same to the witnesses, P.Ws. 2 and 3. P.W. 2 then stated that the testator signed the will in the presence of all the attestors after knowing the contents and thereafter Mr. Ramamurthy Iyer signed it as the first attestor. According to the witness, the other three then signed it and then they all, except the Advocate, went to the Sub Registrar's office, the same day after Raghukalam i.e., after 12 noon, at First Line Beach, Madras, for registering the same. The witness then said that the registration office is at the upstairs of the building and Shanmugha Mudaliar walked the staircase and P.Ws. 3 and 4 identified the testator before the Sub Registrar and they have attested the same. According to the witness, the testator was hale and healthy and was in a sound disposing state of mind and body."

The other attesting witness P.W. 3 was the Manager of the firm S. P. Shanmugha and Sons, belonging to late Shanmugha. His evidence has been considered by the learned single Judge in these words :-

"P.W. 3 has also spoken to the execution of the will by his master late Shanmugha and subsequently the attestation of t