02 December 1954
Supreme Court


Case number: Appeal (civil) 202 of 1954






DATE OF JUDGMENT: 02/12/1954


CITATION:  1955 AIR  363            1955 SCR  (1)1035

ACT: Will-Executed with due solemnities by a person of  competent understanding-Onus   of   proving   undue    influence-Undue influence -Meaning of-Indian Succession Act, 1925 (XXXIX  of 1925), s. 63-Due attestation-Proof of.

HEADNOTE: 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 s. 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  v.  Rossborough ([1857] 6 H.L.C. 2;  10  E.R.  1192),



Craig v.  Lamoureux (1920 A.C. 349) and Hall v. Hall ([1868] L.R. I P. & D. 481), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil 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. The Judgment of the Court was  delivered by VENKATARAMA   AYYAP.   J.-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 S. 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 v. 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  v. 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: 10 E R 1192. (2) 1920 A.C. 349. 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 Ex.  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 Ex. 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 v. 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.  P.Ws. 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.