Onus to prove undue influence.

The substantial question that arises for consideration in this second appeal is about the genuineness and validity of the testamentary document Exhibit A-20 dated nth October, 1960, put forward as the last will and testament of one Kuppan Chettiar who died on 14th October, 1960.

The plaintiffs have filed the suit as executors appointed under the said will for rendition of accounts by the defendants of his agency of the deceased Kuppan Chettiar’s firm in Ipoh. The 1st plaintiff is the wife and the 2nd a daughter of Kuppan Chettiar and the third plaintiff is a stranger to the family. The defendant is the brother of the deceased. He questioned the capacity of the plaintiffs to institute the suit, challenging the genuineness of the will. He set up another will executed by the deceased on 13th March, 1959 at Ipoh, a copy of which is Exhibit B-5. The learned District Munsif of Devakottai accepted the genuineness and validity of Exhibit A-20 and decreed the suit for accounts for the period 27th May,. 1952 to 14th October, 1960, the date of the death of Kuppan Chettiar. On appeal by the defendant, the learned Subordinate Judge of Devakottai, while withholding the consideration of the validity of the earlier will Exhibit B-5, found against the validity of Exhibit A-20. As regards accountability, he held that the defendant was liable to render accounts from 23rd April, 1959 only but till date and not upto 14th October, 1960 alone, accepting the cross-objections filed by the plaintiffs as regards the accounts for the later period. But on. his finding on Exhibit A-20, the suit failed.

In this second appeal by the plaintiffs though the period of accountability has also been the subject of discussion, it is the validity of the will that has to be first determined and is the main question. The deceased Kuppan Chettiar was the eldest of three brothers, the next being the defendant Narayanan Chettiar. The third brother is Sethuraman Chettiar. The brothers became divided in 1952. Prior to the disputed will under consideration and the will evidenced by Exhibit B-5 referred to above, there was another will Exhibit A-3. Under Exhibit A-3 besides the plaintiffs the defendant also was appointed an executor and though the validity of Exhibits A-3 was never examined and even the other will Exhibit B-5 cancelled all the earlier wills, specifically referring also to Exhibit A-3, the learned Subordinate Judge would hold that Exhibit A-20 not being valid, Exhibit A-3 came into operation and that therefore the suit was not maintainable.

I may at the outset say that the discussion of the learned Subordinate Judge on the validity of Exhibit A-20 is far from satisfactory. It suffers from serious infirmities that vitiate the ultimate finding. In view of the order I now propose to pass in the matter, which I, in a way, indicated at the close of the argument. I shall not be going deep into the details of the case except to the extent necessitated for bringing out the infirmities in the approach.

As stated at the outset, the deceased who was separated from his brothers in 1952 had no male issue. He had four daughters. Paripoorna Achi the eldest, Chittal Achi, next, then Annapoorani and then Sivakami Achi. Paripoorna Achi, the eldest daughter, had a son and daughters. Her second daughter Kalyani is married to the defendant’s son Ramanathan and the defendant by his son Ramanathan has four sons Vaidyanathan, Muthukumaran, Kuppan and another. The second plaintiff Chittal Achi has no issue. Sethuraman the last brother of the deceased has a son by name Arunachalam. The decreased had a concubine by name Kannammal in Malaya and through her he had three sons. The wife of the deceased, namely, the 1st plaintiff in the suit has been a helpless invalid for over 15 years and had to be fed and looked after. The deceased who was suffering from high blood pressure when in Malaya had to enter hospital in Ipoh on 26th February, 1959 where he stayed for about 15 to 20 days. It i