Case ID: 298

Judgment:
Appeal No. 202 of 1952. Appeal from the Judgment and Decree dated the 5th day of March	 1951 of the High Court of Judicature at Calcutta in Appeal from Original Decree No. 87 of 1949 arising out of the decree dated the 20th day of January	 1949 in Suit No. 94 of 1946 of the Court of 3rd Additional District Judge at 24 Parganas. M.C. Setalvad	 Attorney General for India	 (Sukumar Ghose	 with him)	 for the appellant. Bankam Chandra Bannerjee and R. R. Biswas	 for respondent No. 1. 1954. December 2. This appeal arises out of an application filed by the first respondent for probate of a will dated 28 11 1943 executed by one Bhabesh Charan Das Gupta. The testator died on 27 10 1944 leaving him surviving two sons	 Paresh Charan Das (the first respondent)	 Naresh Charan Das 1037 (the appellant)	 and a daughter	 Indira (the second respondent. The estate consisted of a sixth share in some ancestral lands at Matta in the District of Dacca	 and a house No. 50	 South End Park	 Calcutta	 built by the testator on a site purchased by him. By his will) he directed that a legacy of Rs. 10 per mensem should be paid to his younger son	 the appellant	 for the period of his life; that his daughter should be entitled to a life estate in five specified rooms in the house to be enjoyed either personally by her and the members of the family	 or by leasing them to others; that a legacy of Rs. 10 per mensem should be paid to one or the other of two hospitals named	 and that subject to the legacies aforesaid	 the first respondent should take the estate	 perform the sraddha	 and pay one sixth of the expenses for the worship of the deity installed in the ancestral house. The first respondent who was the sole executor under the will	 applied in due course for probate thereof. The appellant entered caveat	 and thereupon	 the application was registered as a suit. He then filed a written statement	 and on that	 the following issues were framed: (1)"Was the Will in question lawfully and validly executed and attested? (2)Had the testator testamentary capacity at the time of the execution of the Will? (3)Was the Will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta?" The Additional District Judge of the 24 Parganas who tried the suit held in favour of the first respondent on issues 1 and 2	 but against him on issue 3	 and in the result	 probate was refused. The first respondent took the matter in appeal to the High Court	 and that was heard by G. N. Das and section C. Lahiri	 JJ. Before them	 the appellant did not contest the correctness of the finding of the Additional District Judge that the testator had testamentary capacity when he executed the will. The two contentions that were pressed by him were (1) that the will in question was executed by the testator 1038 under undue influence of the first respondent	 and (2) that it was not validly attested	 and was therefore invalid. On both the questions	 the learned Judges held in favour of the first respondent	 and accordingly allowed the appeal	 and directed the grant of probate. Against this judgment	 the caveator prefers this appeal	 and contends that the findings of the Court below on both the points are erroneous. The main question that arises for our decision is whether the will in question was executed under the undue influence of the first respondent. "When once it has been proved"	 observed Lord Cranworth in Boyse vs Rossborough(1) "that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent	 the burden of proving that it was executed under undue influence is on the party who alleges it". Vide also Craig vs Lamoureux(2). 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 first respondent. The facts so far as they are material for this issue	 may now be stated	 The testator was a police officer and retired in 1927 as Deputy Superintendent of Police. Paresh Charan	 the elder son	 was married in 1925	 and lived all along with his parents with his wife and children. Nirmala	 the wife of the testator	 died in 1929	 and thereafter it was the wife of Paresh Charan that was maintaining the home. Naresh Charan studied up to I.A.	 but in 1920 discontinued his studies and got into employment in the workshop of Tata & Co.	 at Jamshedpur on a petty salary; and the evidence is that thereafter he was practically living apart from the family. In 1928 he married one Shantimayi	 who was a widow having some children by her first husband. She belonged to the Kayastha caste	 whereas Naresh Charan belonged to the Baid caste. The testator was strongly opposed to this (1) [1857] 6 H.L.O. 2: ; (2) 1039 intercaste marriage	 and did his best to stop it but without success. The correspondence that followed between the appellant and his father during this period clearly shows that the father felt very sore over this alliance	 and wrote that it could not pain him even if his son died. With this background	 we may turn to the will. The relevant recitals therein are as follows: "My younger son Sri Naresh Charan Das Gupta is behaving badly with me and without ray knowledge and consent be has married a girl of a different caste and she has given birth to two female children and one male child. In these circumstances my said son Sri Naresh Charan Das Gupta and his son Sreeman Arun Gupta and the two daughters or any other son or daughter who may be born to him	 will not be entitled to perform my sradh or to offer me Pindas. For all these reasons I deprive my second son Sri Naresh Charan and his son Sreeman Arun Gupta and his two daughters and any other sons or daughters who may be born to him as well as Naresh 's wife Sreemati Santi of inheritance from me and from all my movable and immovable properties	 ancestral as well as self acquired. They shall not get any share or interest or possession in any of my aforesaid properties". It is not disputed that these recitals accord with what the testator had expressed in the correspondence at the time of the marriage and for some years thereafter. But it is argued that since then	 more than a decade had passed before the will was executed	 and that during this period the natural affection of the testator for his son had re asserted itself	 that he had forgiven and forgotten the past	 and that when the will was actually executed	 the recitals above extracted did not correctly reflect the then mind of the testator. We have been taken through the entire correspondence that passed between the testator and the appellant and the members of his family. It shows that the testator was solicitous about the welfare of the appellant	 and was enquiring about his health and 1040 sending him on occasions medicines; that he was affectionately disposed towards his children and was sending them presents of cloth; that latterly he had so far modified his attitude towards the wife of the appellant as to invite her and her children to Calcutta; that he himself stayed with them for some time at Jamshedpur and was giving advice to the appellant on matters connected with his employment. It was argued that there was thus a gradual change of heart on the part of the father towards the appellant and the members of his family	 that. the recitals in the will could not be reconciled with this change of attitude	 and that they must have been inspired by the first respondent. We are 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 the other. The testator	 it is clear from the correspondence	 was a man of strong will	 determined and unshakable in his resolutions. He wrote of himself in exhibit C(34) that "I am one third conservative	 one third liberal and one third autocratic". He was very solicitous about the family prestige and reputation	 and felt deeply hurt when his son entered into a marriage which was viewed by his community with disfavour. In exhibit 6(c) he wrote	 "You broke our hearts for a woman who has no right to be in my house"	 And 1041 as late as 25 12 1941 he wrote to the appellant that if his wife and children came to live with him "they must prepare themselves to meet uncalled for taunts and unpleasant enquiries which may be made by our near and distant village relations in our society who will come to see us". (Vide Exhibit C(37)). There cannot	 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 the last. It was also argued that the dispositions in the will were unnatural in that the appellant had been practically disinherited and his children altogether ignored. This by itself cannot lead to any inference of undue influence on the part of the first respondent. Having regard to the character of the testator and his feelings in the matter it is not a matter for surprise that he should have cut off the appellant with a small legacy. It must also be mentioned that the net value of the assets as given in the probate petition is Rs. 23	865 10 9	 and if the other legacies and charges are deducted	 what was bequeathed to the first respondent cannot be said to be very considerable. It also appears that at that time his salary was Rs. 60 per mensem and that he had a number of children	 whereas the appellant is stated to have had a basic salary of Rs. 250 per mensem then. The first respondent	 his wife and children have all along been dependents of the testat or	 whereas the appellant had lived apart from him from 1920. And it is not unnatural for the testator so to order the distribution of his estate as to secure the continuance of the existing state of affairs. The terms of the will	 therefore	 cannot be relied on as intrinsic evidence of undue influence	 as contended for by the appellant. Then there is the evidence of Indira	 the daughter of the testator	 which was taken on commission. She deposed that the testator bad told her that there were troubles in the house	 that the elder son had objection to stay with the younger one	 "because if they live together	 there will be social trouble regard 1042 ing his daughters marriage"	 and that he therefore wanted to make a will. She went on to add. that the father subsequently wanted to alter the will and sent for her repeatedly for discussions	 but that she generally excused herself	 because she did not like to intervene in the matter	 and that on those occasions	 he told her	 "At present this will stand	 but I want to modify it in future". Indira also deposed that the first respondent and his wife used to tell the testator that there was no change in the conduct of the appellant	 that he was extravagant in his habits and incurred debts	 and that he had taken away some articles. We do not consider that it is safe to act on this evidence. It is clear from Exhibit I 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 1043 undue influence. The law was thus stated by Lord Penzance in Hall vs Hall(1): "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 testator 's 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 else 's". Section 61 of the 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". (1) (1868) L.R. 1 P. & D. 481 & 482. 134 1044 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. I 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 of P.W. 1. The document was presented for registration by the testator	 and be 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	 be 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. I 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 that there was no due attestation. Both the Courts below have 1045 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 Judge 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. In the result	 the decision of the High Court is confirmed	 and this appeal is dismissed	 but in the circumstances	 without costs. Appeal dismissed.

Summary:
When once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent	 the burden of proving that it was executed under undue influence is on the person who alleges it. It is well settled 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 cause before the testator and to persuade him to make a disposition in his favour. And if the testator 133 1036 retains his mental capacity and there is no element of fraud or coercion	 the will cannot be attacked on the ground of undue influence. All influences are not unlawful. Persuasion	 appeals to the affections or ties of mankind	 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. It cannot be laid down as a matter of law that because the attesting witnesses did not state in examination in chief that they signed the will in the presence of the testator	 there was no due attestation as required by section 63 of the Indian Succession Act. It is a pure question of fact depending on the appreciation of evidence and the circumstances of each case whether the attesting witnesses signed in the presence of the testator. Boyse vs Rossborough ([1857] ; ; 	 Craig vs Lamoureux and Hall vs Hall ([1868] L.R. I P. & D. 481)	 referred to.