Case: Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta

has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the will cannot be attacked on the ground of undue influence. The law was thus stated by Lord Penzance in Hall v. Hall ((1868) L.R. 1 P. & D. 481 & 482) :"But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes. If so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, - these, if carried to a degree in which the free play of the testators judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one elses".11. Section 61 of Indian Succession Act (Act XXXIX of 1925) enacts that,A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void".Illustration (vii) to the section is very instructive, and is as follows :"A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B".12. Even if we accept the evidence of Indira, the case would, on the facts, fall within this Illustration. It is not disputed that the testator was in full possession of his mental faculties. There is no proof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition. On the other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P.Ws. 1 and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence if P.W. 1. The document was presented for registration by the testator, and he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion that the will is not open to question on the ground of undue influence.It was also argued for the appellant that there was no proof that the will was duly attested as required by section 63 of the Indian Succession Act, and that it should therefore be held to be void. P.Ws. 1 and 2 are the two attestors, and they stated in examination-in-chief that the testator signed the will in their presence, and that they attested his signature. They did not add that they signed the will in the presence of the testator. Now, the contention is that in the absence of such evidence it must be held as that there was no due attestation. Both the Courts below have held against the appellant on this contention. The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judges that "the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit". This contention of the appellant must also be rejected.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the present case, it is not in dispute that the testator executed the will in question, and that he had the requisite mental capacity at that time. The burden, therefore, is on the appellant to establish that the will was the result of undue influence brought to bear on him by the firstis not disputed that these recitals accord with what the testator had expressed in the correspondence at the time of the marriage and for some yearsare unable to agree. It is one thing for a father who feels that he has been wronged by a disobedient son to wish him well in life, and quite another thing to give him any of his properties. In the whole of the correspondence which has been read to us, there is nothing to suggest that he wanted the appellant to share in the estate. On the other hand, there are indications that even when the appellant was in financial difficulties, the testator considered that he was under no sort of obligation to come to his help. Vide Exs. 5(c) and C(1). It may be mentioned that after making the will on 28-11-1943 the testator continued to correspond with the appellant and the members of his family precisely in the same terms as before. Vide Exs. B(2), C(4) and A(10). That shows that the two currents of natural affection and settlement of properties flowed in distinct channels, and that the change in the course of the one had no effect on the direction of thecannot, therefore, be any doubt that the testator was all along smarting under a sense of social humiliation by reason of the inter-caste marriage, and that the recitals in the will were manifestations of a sore in his heart which had remained unhealed to theregard to the character of the testator and his filings in the matter it is not a matter for surprise that he should have cut off the appellant with a smalldo not consider that it is safe to act on this evidence. It is clear from Exhibit 1 that Indira and her husband had taken sides with the appellant as against the first respondent, and wrote to him that in spite of the will the appellant "should have his share as early as possible in order to avoid further complication", though it may be noted that they insisted on their rights under the will. Stripped of all its embellishments, the evidence of Indira, if true, comes only to this that the first respondent told his father that he could not live under the same roof with his brother, and that in view of that attitude, the testator gave no share to the appellant in the house. We are unable to see any undue influence in this. The first respondent was entitled to put forward his views in the matter, and so long as the ultimate decision lay with the testator and his mental capacity was unimpaired, there can be no question of undue influence.It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as "undue". It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion - it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the will cannot be attacked on the ground of undueif we accept the evidence of Indira, the case would, on the facts, fall within this Illustration. It is not disputed that the testator was in full possession of his mental faculties. There is no proof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition. On the other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P.Ws. 1 and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence if P.W. 1. The document was presented for registration by the testator, and he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion that the will is not open to question on the ground of unduethe Courts below have held against the appellant on this contention. The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judges that "the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit". This contention of the appellant must also be rejected.