Will executed after signing the declaration.

This is an appeal against the judgment of Yahya Ali, J., dismissing a suit brought by the appellant for grant of Letters of Administration with the will of the deceased K. V. Balakrishnamurthy annexed. She is the widow of the testator. The caveator, the defendant in the suit and the respondent herein is the uterine brother of the deceased. The appellant alleged that her husband Balakrishnamurthy duly executed on 4th August, 1947, the will in respect of which letters of administration were sought. He died on 6th August, 1947. The defendant pleaded that when the will was executed by him Balakrishnamurthy was not in a sound and disposing state of mind and in any event the will was executed under coercion and undue influence exercised on the testator by his father-in-law one Dr. G. Venkata Rao. In addition to these pleas which are strictly germane to a testamentary suit, the defendant also pleaded that the deceased was an undivided member of a joint family along with the defendant when he executed the will and when he died and that therefore it was not valid and binding as the deceased had no power to dispose of joint family properties. The following issues were framed on the pleadings:

(1) Was the will, dated 4th August, 1947, executed by late Kathirisetti Venkata Balakrishnamurthy while in a sound disposing state of mind?

(2) Was the will, dated 4th August, 1947, executed by late K. V. Balakrishnamurthy under coercion and undue influence exercised by his father-in-law?

(3) Was the deceased not divided in status from the other members of his family at the time when he executed the will and when he died?

Though a determination of the third issue was not necessary for the grant of the relief prayed for by the plaintiff, yet both the parties went to trial on the issue and the learned Judge has given his finding on that issue as well.

The learned Judge found in favour of the plaintiff on both issues 1 and 2. Ordinarily, on these findings, the suit should have been decreed. But the learned Judge found against the plaintiff on issue 3 on the ground that the deceased was not divided in status from the defendant at the time when he executed the will and therefore the will was not valid and binding on the defendant. In the result he dismissed the suit, though the learned Judge felt constrained to observe that the result was by no means satisfactory. The plaintiff appeals against the dismissal of her suit.

The learned counsel for the respondent challenged the findings of fact arrived at by the learned trial Judge and sought to support the dismissal of the suit on grounds on which the trial Judge had held against him. The appellant’s counsel besides supporting the findings of the learned Judge on the facts attacked the correctness of the learned Judge’s finding on issue 3. It is convenient first to take up issues 1 and 2 together.

The deceased Balakrishnamurthy was the son of one Venkatanarasayya by Ms second wife Kesavanarayanamma. By his first wife he had a son and a daughter. The daughter was married to one Dr. G. Venkata Rao and the plaintiff is their daughter. She was married to Balakrishnamurthy on 22nd November, 1945. Venkatanarasayya died in 1934 leaving behind him a will, dated 5th January, 1934. He bequeathed a third share in the family properties to his second wife, the mother of the deceased and the defendant.

The deceased Balakrishnamurthy was a Bachelor of Engineering and was employed at the time of his death as Supervisor in the Sanitary Engineer’s Office at Madras, after having served in various other places. He was transferred to Madras in July, 1947, but was unable to secure a house and was therefore compelled to put up with a friend. His wife was staying with her father Venkata Rao at Chica-cole (Srikakulam). He appears to have been given a quinine injection, it is not clear for what disease, and he developed an abscess at the place where he was injected. Unfortunately tetanus also set in; symptoms became very