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PETITIONER: SURENDRA PAL & ORS.

       Vs.

RESPONDENT: SARASWATI ARORA & ANR.

DATE OF JUDGMENT09/08/1974

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN BEG, M. HAMEEDULLAH ALAGIRISWAMI, A.

CITATION:  1974 AIR 1999            1975 SCR  (1) 687  1974 SCC  (2) 600

ACT: Will--Bequest of entire property in favour of second wife to the  exclusion of children by the first wife and  mother  of testator--Presumption of undue influence, if can be drawn.

HEADNOTE: In April,1959, the testator’s wife died leaving behind  four daughters  and a son. Two of the daughters were  married  to persons  in affluent circumstances.  The son was not  living with  his father at the time of his death and the other  two daughters  were  living  with the  brother.   The  relations between  father  on  the one hand, and the  son  (the  first appellant) and the two daughters on the other, were strained and bitter, and in fact,there was positive hostility between them.  The testator even apprehended danger to his life  and he filed criminal complaints against the son.  In September, 1960, the testator advertised for a wife in a newspaper  and the mother of the first respondent replied to it, on  behalf of the 1st respondent, and asked for particulars.  But  even before the testator and the 1st respondent met, the testator entered  into  an  agreement  with  the  1st  appellant,  in October, 1960, and in that agreement, he made provision  for the  maintenance  and  marriage of  one  daughter  and  also provided  for  the maintenance and residence  of  the  other daughter  though  no mention was made  about  her  marriage. There  was  also  no provision for the  maintenance  of  the mother of the testator who was then living with him.   After some  correspondence between the testator and the  relations of the first respondent the parties met and the testator and the  first respondent were married on February 7, 1961.   On the very next day, the testator executed a will. by which he bequeathed  his  entire  property  to  his  wife,  the   1st respondent.  The will was-attested by the brother of the 1st respondent  and  a friend.  The testator did  not  make  any provision for the maintenance of his mother and the marriage of  his  youngest daughter.  The testator  lived  for  three years  thereafter  and  died  in  January,  1964.   The  1st respondent filed an application for probate of the will  and the  1st  appellant contested the  application.   The  trial court granted probate to the 1st respondent and the judgment was confirmed in appeal by the High Court.

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Dismissing the appeal to this Court, HELD  :  The will was genuine and all the  formalities  that were required were fully satisfied as it was executed by the testator  in  a sound disposing state of mind and  was  duly attested as required by law. (1)  The propounder of a will has to show that the will  was signed by the testator, that he was at the relevant time  in a  sound  disposing state of mind, that  he  understood  the nature  and  effect  of the dispositions, that  he  put  his signature to the testament of his free will and that he  had signed  it in the presence of two witnesses who attested  it in  his  presence and in the presence of  each  other.  once these  elements  are  established the onus  resting  on  the propounder  is  discharged.  If the caveator  alleges  undue influence,  fraud and coercion the onus is on him  to  prove the  same.  If the caveator does not discharge  this  burden probate  of  the will must necessarily be granted if  it  is established that the testator had full testamentary capacity and  had, in fact, executed it validly with a free will  and mind.   A man may act foolishly and even heartlessly but  if he  acts  with full comprehension of what he  is  doing  the Court will not interfere with the exercise of his  volition. There  may  however be cases in which the execution  of  the will is surrounded by suspicious circumstances such as where the signature is doubtful, the testator is of feeble mind or is  overawed  by powerful minds interested  in  getting  his property   or   where,  in  the  light   of   the   relevant circumstances,  the  dispositions appear  to  be  unnatural, improbable  t and unfair; or; where there are other  reasons for doubting that the dispositions in the will were not  the result  of the testator’s free will and mind.  In  all  such cases  the  suspicious circumstances must  be  reviewed  and satisfactorily  explained by the propounder before the  will is  accepted  as genuine.  Again, in cases  where  the  pro- pounder has himself taken a prominent part in the  execution of the will which 688 confers  on  him  a substantial benefit, that  is  itself  a suspicious  circumstance which he must remove by  clear  and satisfactory evidence.[692 C-E; 093 A-C] H.  Venkatachala Iyengar v. B. N. Thimmjamma &  Ors;  [1959] Supp. 1 S.C.R. 426, and Rani Purnima Devi and Anr. v.  Kumar Khagendra  Narayan  Dev  &  Another  [1962]  3  S.C.R.  195, followed. Motilal Hormusjee Kanga v. Jamsetjee Hormusjee Kanga, A.I.R. 1924 P.C. 28, applied. (2)  In  the  present case, the 1st  respondent  was  merely present at the time of the execution of the will and did not have  anything  to  do  with its  execution.   In  order  to understand  what the testator intended and why  he  intended so,  one has to sit in his arm chair to ascertain his  frame of  mind  and  the circumstances in which he  de  the  will. After  the testator’s marriage with the 1st  respondent  and before  the  1st appellant and his two  unmarried  daughters came  to  know about the will they  had  definitely  behaved shabbily and in a very hostile manner to the testator.   The testator was completely ignored at the time of the  marriage of one of the daughters and the son and daughters never came to  see him even when he was dying.  The 1st  appellant  did not take his son to see the grandfather even though the  1st appellant  admitted that his father was anxious to  see  his grandson.   With  a  family  so  hostile  towards  the   1st respondent,  it is but natural for the testator  to  provide for  his  newly  wed wife even without  her  asking  him  or importuning him to do so.  The 1st respondent was herself  a

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doctor  of 13 years standing and there is no  evidence  that she  was a gold digger.  The correspondence shows  that  the only  consideration that prevailed between the  parties  was companionship.   There was no suggestion that  the  testator was feeble minded or so completely deprived of his power  of independent thought and judgment as to faithfully carry  out the  wishes of the 1st respondent to whom he became  engaged and got married.  On the contrary, it appears that it was he who offered the inducement voluntarily to her. (3)  The reason why he did not provide for the  marriage  of the youngest daughter might be that he did not think that he would  die so soon.  He must have thought that he  would  be able  to perform the marriage himself, or he  never  doubted that the 1st respondent would not discharge that obligation. The reason for not providing for his mother might have  been that he must have thought that he would survive her. (4)  If an objective and rational deduction of  a  principle emerges  from  a decision of a foreign country  rendered  on legislative  provisions in pari materia with those  of  this country and which is applicable to the conditions prevailing in  this country, such a decision will assist the  court  in arriving  at  a proper conclusion.  But it is  dangerous  to apply  blindly statements of law enunciated  and  propounded for  meeting the conditions existing in countries  in  which they  are applicable, without a critical examination of  the principles and their applicability to the conditions, social norms,  and attitudes existing in this country, and  without considering the background and various other considerations. Apart  from general considerations emerging from the  nature of  a  will  and the circumstances  which  not  infrequently surround  its  execution there are other matters  which  are peculiar to the times, the society and the person making the will  and  his  or  her  family.   Inferences  arising  from relationships  between  a  testator and  a  legatee  are  so dependent upon the peculiarities of the society or community to  which  they  belong, their  habits  and  customs,  their values, their mores, their ways of thinking and feeling, and their  susceptibilities  to particular kinds  of  pressures, influences  or inducements, that it is difficult  to  reduce them  to  a  general  rule  applicable  at  all  times   and everywhere  so as to raise a presumption of undue  influence from  a particular type of relationships.  In this  country, even to-day a marriage is an arranged affair and even in the instant  case when an advertisement was resorted to  by  the testator  it was the first respondent’s mother who  replied. Therefore whatever may be the position in England as to  the presumption  of  undue  influence in  the  case  of  parties engaged to be married (such a presumption is referred to  in Halsbury’s  Laws of England, Vol. 17, p. 681, Art. 31 1)  it would  be hardly applicable to conditions in  this  country. [697 D; 698 A-C, G; 699 H-700 B] (5)  Unlike  the position in England at the  time  when  the courts recognised the presumption between a man and a  woman engaged  to  be married the law of evidence is  codified  in this country in the Indian Evidence Act.  Every presumption, barring 689 some  special  ones created by other enactments, has  to  be related to a provision of the Evidence Act.  The only  kinds of  relationship giving rise to such presumptions are  those contemplated  in  s. 1 1 1 of the Evidence Act.   Any  other presumption  from a relationship must, to be acceptable,  be capable  of  being raised under s. 114 of  that  Act.   Such presumptions are really optional inferences from proof of  a frequently  recurring set of facts which make  a  particular

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inference  from  such  facts reasonable  and  natural.   The instant case does not fall within s. 111. The plea of  undue influence  is  a  special  plea, and under  s.  103  of  the Evidence Act, the burden of substantiating such a plea is on the party who sets it up. [700 B-E] (6)  There  is no proof that the will  was  executed  before marriage.   Even if the date had been altered from 7th  Feb. to 8th Feb. it was altered by the testator and he must  have done so because he made a mistake.  People often put a wrong date  and immediately correct it.  Further the  evidence  of the  two  attestors  which has been  accepted  by  both  the courts, shows that the execution and attestation of the will was on the same day, namely 8th February. [700 F-G] (7)  Even  if  it was executed on  7th  February  there  was nothing to show that it was executed before the marriage  on that  day.  It is unlikely that the first  respondent  would make a stipulation that the property should be bequeathed to her, as she must have known that a will is ambulatory and  a marriage  with such a condition would only beget  dissension between the parties. [701 A-B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1153  of 1971. Appeal by Special Leave from the Judgment & Decree dated the 30th  September, 1970 of the Calcutta High Court  in  Appeal No. 78 of 1967. B.  Sen,  M.  K.  Banerjee, and  B.  R.  Agarwala,  for  the appellant. Y. S. Chitle and P. C. Bhartari, for the respondents. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J. This appeal is by special leave against the grant of a probate of the will of Bhim Sain Arora  dated February  8,  1961  in favour of his  wife  Saraswati.   The deceased  who had lost his first wife on April 14, 1959  had advertised in September 1960 for a wife in the  matrimonial, column of Sunday Tribune of Ambala.  The advertisement is as follows:               "A widower, renowned merchant desires to marry               accomplished and liberal-minded Punjabi  Hindu               unmarried   or   issueless   widow   from    a               respectable  family  of above  30  years  age.               Write  confidentially  to Box  No.  47170  C/o               Tribune-, Ambala." The  respondent Saraswati aged 35 years a Doctor by  medical profession  was also on a look-out for a husband replied  on October 4, 1960, not in her name but purporting to be in the name  of  Mrs.  Puri-her  mother.  in  this  letter  a   few particulars  were  called for regarding  "the  gentleman  in question  e.g. age, location, parentage, any issues  out  of first wife, education etc." She also asked for clarification of  "the exact expectation by the words  "liberal-minded,’." This  letter  was  replied to  by  one  Amalendu  Chaudhuri, Personal Assistant to the deceased Bhim Sain on October  11, 1960.   This  letter was answered by Puri  on  December  26, 1960.   The  correspondence  shows that both  of  them  were looking for partners who conformed to similar  requirements. We shall deal 690 with  the purport Of the correspondence at  the  appropriate place, but for the present it is sufficient to say that as a result of this correspondence the respondent Saraswati  came to  Calcutta with her mother on January 30, 1961 and  stayed

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with her sister and her husband Colonel Harish Chandra Vigh. After  perusing the correspondence, Col.  Vigh rang up  Bhim Sain  and invited him to come over to his place.  Bhim  Sain visited Col.  Vigh’s place on three successive days, namely, 31st  January, 1st February and 2nd February, 1961  and  had talks with Saraswati and her family members who were  there. On  February  2, 1961, Bhim Sain invited Saraswati  and  her people  including  Col.  Vigh to have tea at  his  place  on February  3,  1961.   At that meeting on the  tea  party  on February 3, 1961, Bhim Sain and the respondent agreed to get married  on February 7, 1961. Notice under the Special  Mar- riages  Act was given to the Registrar, but since  the  time was  not sufficient to fulfil the requirements of that  Act, this  notice was ante-dated and the marriage took  place  on February  7,  1961.  After the marriage, Saraswati  went  to stay with her husband.  On February 8, 1961, Bhim Sain  rang up  Col.  Vigh and informed him that he would like to go  to this  place that evening for executing a will and asked  him to get a friend to witness ,It.  Accordingly in the  evening of  February 8, 1961, Bhim Sain went to Col.   Vigh’s  place along  with Saraswati.  There he met one Nelson Das who  was introduced  to him as the Purchase Officer of Bridge &  Roof Company.  After that Bhim Sain took out the draft of a  will which he signed in the presence of Col.  Vigh and Nelson Das both of whom attested it thereafter. After  the will was executed Bhim Sain lived with  Saraswati for nearly 3 years before his death on January 18, 1964.  It may  here be mentioned that Bhim Sain had by his first  wife four  daughters  and one son.  Of them  two  daughters  were married  to  persons in affluent  circumstances,  the  third daughter  Shanta  22 years old had not been married  by  the time  Bhim Sain got married and the fourth daughter Rita,  a minor of 13 years old, was studying in Loreto Convent School at  Simla.  The son Surendra Pal Arora was not  living  with his  father .at that time.  Both the courts have  held  that the relationship between the son, Shanta and Rita on the one hand  and the father on the other were not good so  much  so that  the  two  daughters were in fact  living  ’with  their brother Surendra Pal-the first appellant. After  the death of his father the first appellant  Surendra Pal wrote .a letter to the respondent Saraswati in which  he said that the respondent had mentioned about a will made  by his  father  in  her favour  regarding  which  he  expressed ignorance  and  wanted to see it.  If there was in  fact  no will  he  wanted  "an  amicable  partition  of  considerable properties and assets" belonging to his father.   Thereafter correspondence  took  place between the  solicitors  of  the parties  which ultimately resulted in the respondent  filing an  application  on September 14, 1964, for the issue  of  a probate  testimento-cum-annexo.  A caveat had  earlier  been filed by the first appellant and the matter was 691 contested.  Rita, who was then unmarried and living with her maternal  uncle Sikri, who was also her guardian  ad  litem, did  not  contest the will but she appears to have  made  an attempt  before the Appellate Court at a late stage to  file an appeal.  Her application was, however, dismissed. The grounds on which the will was contested were-(i) that it was not a genuine document; (ii) that the signature of  Bhim Sain  Arora  on the will was not his real  signature;  (iii) that at the time of the execution of the will Bhim Sain  did not  know  the  contents of the will, nor did  he  give  any instructions to his solicitors nor did he consult them; (iv) that  the will had not been read over or explained  to  Bhim Sain  nor did he read it himself before it was executed,  as

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such he was not aware of the nature and effect of the  will; (v)  that even if the will had been written and executed  by Bhim  Sain such execution of the will had been  obtained  by fraud,  coercion and undue influence or importunity  of  his wife  in collusion with her brother-in-law Col.  Vigh;  (vi) and  that after making the will, Bhim Sain was prevented  by force and threats from executing a further will prepared  by and under his instructions by which inter alia the  property would  have  been  equitably  divided  and  provisions  made particularly for the aged mother and the minor child. The  first  appellant gave some particulars of  the  alleged fraud,  coercion,  undue influence and  importunity  of  the respondent exercised  upon Bhim Sain.  Rita in her affidavit supported the averments and allegations made by her brother. The  mother  of  the  deceased  Wazir  Devi  also  filed  an affidavit denying any knowledge of the execution of the will and  complained that after Bhim Sain’s death the  respondent Saraswati  made  it impossible for her to live in  the  same premises as a result of which she had to leave the house and live with her grandson the first appellant.  The Trial Judge on  the pleadings framed six issues-"(1) Has the  will  been duly  executed and attested ? Is the will genuine ? (2)  Was the  testator aware of the nature and effect of the  will  ? (3)  Had the testator testamentary capacity at the; time  of signing  the  alleged will ? Was the execution of  the  will obtained  by  fraud  or  coercion  or  undue  influence   or importunity  of the petitioner and others acting with her  ? (5)  Was  the deceased prevented by force and  threats  from executing  a further will by which his property  would  have been equitably divided? (6) To what relief, if any, are  the other parties entitled?" All these issues were held  against the first appellant. In  appeal  also  the  Division  Bench  of  the  High  Court confirmed the findings of the learned Trial Judge.  It  may, however,  be  mentioned that there was no challenge  to  the testamentary  capacity of Bhim Sain though the affidavit  of the  first  appellant and the affidavits in support  of  the first  appellant’s case had contained such an averment.   No evidence was also led to suggest that Bhim Sain was  lacking in  any manner of testamentary capacity.  There was also  no contest that the will was executed by Bhim Sain nor were the signatures  of  the  aforesaid  witnesses  challenged.    It appears a feeble attempt was 692 made  by the maternal uncle of the first appellant Sikri  to suggest  that Bhim Sain tried to revoke the will.  Both  the Courts  have,  however, held that no such attempt  was  ever made.   The will is, however, sought to be attacked  on  two grounds  : firstly, that it was executed originally by  Bhim Sain   without   any  attestation,  but   subsequently   the attestation clause came into existence and the two attesting witnesses  subscribed  their signatures; and  secondly,  the will had been procured by undue influence exercised on  Bhim Sain  by  the  first respondent as  a  condition  for  their marriage.   The Trial Court as well as the  Appellate  Court have  rejected  both these contentions on an  elaborate  and detailed consideration of each and every circumstance  urged before them. The  propounder has to show that the will was signed by  the testator  :  that  he was at the relevant time  in  a  sound disposing  state of mind, that he understood the nature  and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it  in the  presence  of the two witnesses who attested it  in  his presence  and  in  the presence of each  other.  once  these

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elements  are  established,  the onus  which  rests  on  the propounder  is discharged.  But there may be cases in  which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful  minds interested in getting his property, or where in the light of the  relevant  circumstances the dispositions appear  to  be unnatural,  improbable and unfair, or where there are  other reasons  for doubting that the dispositions of the will  are not the result of the testator’s free will and mind.  In all such   cases  where  there  may  be  legitimate   suspicious circumstances  those  must be  reviewed  and  satisfactorily explained before the will is accepted.  Again in cases  were the  propounder  has himself taken a prominent part  in  the execution  of  the  will which confers  on  him  substantial benefit  that is itself one of the suspicious  circumstances which  he  must remove by clear and  satisfactory  evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must   be  commensurate  with  the  need  to  satisfy   that conscience  and remove any suspicion which a reasonable  man may,  in the relevant circumstances of the case,  entertain. See  H. Venkatachala Iyengar v. B. N. Thimmajamma &  Ors;(1) and Rani Purnima Devi and Anr v. Kumar Khagendra Narayan Dep & Another.(2) In the latter case this Court, after referring to the principles stated in the former case emphasised  that where there are suspicious circumstances the onus will be on the  propounder to explain them to the satisfaction  of  the Court  before  the will could be accepted  as  genuine;  and where  the  caveator  alleges  undue  influence,  fraud  and coercion  the onus is on hi to prove the same.  It has  been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator,  the condition  of the testator’s mind, the dispositions made  in the will which may be unnatural or unfair or improbable when considered (1) [1959] Supp. 1 S.C.R. 426. (2) [1962] 3 S.C.R. 195. 693 in the light of the relevant circumstances. if the  caveator does  not  discharge  the burden which  rests  upon  him  in establishing the circumstances which show that the will  had been  obtained by fraud or undue influence a probate of  the will  must necessarily be granted if it is established  that the testator had full testamentary capacity and had in  fact executed  it  validly  with  a  free  will  and  mind.   The observations of the Privy Council in Motibai Hormusjee Kanga v.   Jamsetjee   Hormusjee  Kanga(1)   support   the   above proposition.   Mr. Ammer Ali observed at p. 33 "It is  quite clear  that  the onus of establishing capacity  lay  on  the petitioner.  It is also clear that if the caveator  impugned the will on the ground that it was obtained by the  exercise of undue influences, excessive persuasion or moral coercion, it  lay  upon him to establish that case." in the  light  of what has been stated if the various requirements of a  valid will are established, then as observed by the Privy  Council in  Motibai Hormusjee Kanga’s came at p. 33 ’A man  may  act foolishly  and even heartlessly; if he acts with  full  com- prehension of what he is doing the Court will not  interfere with the exercise of his volition." In the light of the above guide-lines, the contentions urged against  the  grant of probate of the will will have  to  be considered.   Before  the Appellate Court  eight  suspicious circumstances were marshalled which were-(i) Saraswati Arora who was the sole recipient of the entire benefit of the will

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herself  took part in the execution of the will at the  time of  execution;  (ii)  the dispositions in the  will  by  the testator  were  unnatural,  improbable  or  unfair  as   was apparent  from  the exclusion of the mother Wazir  Debi,  as well  as  the exclusion of all the children  of  Bhim  Sain, particularly  of Rita, the minor daughter and of Shanta  who was  at  that time unmarried; (iii) none  of  the  attesting witnesses  was  wholly disinterested; (ii) that  no  trained lawyer  appears  to have been engaged in the drawing  up  or execution  of  the  will; (V) no  special  reason  could  be adduced to explain the execution of the will on February  8. 1961  ;  (vi) the evidence in support of  the  will,  parti- cularly  the evidence of the propounder  was  unsatisfactory and  interested; (vii) there was evidence to show that  some alteration had been made in the date of the will; and (viii) the  attestation  clause  seems  to have  been  typed  in  a separate  operation after the typed will had been taken  out of the typewriter and then reinserted. The Appellate Court agreeing with the Trial Judge held  that the  first respondent was merely present at the time of  the execution  of the will and did not have anything to do  with its execution.  The case of the first appellant was that  as a  condition  of  the marriage  arrangement,  the  will  was executed and because of that Bhim Sain made no provision for the  maintenance of his aged mother or for  the  maintenance and  marriage  of his youngest daughter Rita  who  was  then studying.   Instead he gave away the entire property to  the first  respondent  which is a  suspicious  circumstance  and raises an inference of undue influence.  This submission was clearly negatived, and on the (1) A.I.R. 1924 P.C. 28.    (3) (1973) 2 S.C.R. 541. 694 evidence  there  can  be no gainsaying  the  fact  that  the conclusion  to  which  both  the Courts  have  come  to  are unassailable.  It is not for us to fathom the motivations of man.   His actions and reactions are unpredictable  as  they depend  upon  so  many circumstances.   There  is,  however, always  some  dominant  and  impelling  circumstance   which motivates a man’s action though in some cases even a trivial and  trifling  cause impels him to act in a  particular  way which   a  majority  of  others  may  not  do.    At   times psychological factors and the frame of mind in which he  is, may determine his action. In  this case, however, there is little or no difficulty  in finding  out the probable reason why Bhim Sain while  making the  will  did not provide for his mother and  his  youngest daughter.   These  reasons are elaborately set  out  in  the judgment of the Appellate Court.  No doubt the learned Judge who  delivered  the judgment of the Bench did say  that  the exclusion of the mother as well as his children particularly Rita the minor daughter and Shanta showed the disposition to be  unnatural, improbable and unfair and would give rise  to suspicious  circumstances. in order to understand  what  the testator  intended  and why he intended so, one has  to  get into  his arm-chair to ascertain his frame of mind  and  the circumstances in which he made the will.  As we have stated, Bhim Sain lost his first wife on April 13, 1959.  On  August 16, 1960 just over a year after her death, Bhim Sain went to the  police  station and made a complaint  against  his  son (Surendra  Pal).  This complaint as recorded in the  general diary  showed  that  Surendra  Pal  had  been  "continuously insulting,  abusing  and  threatening  to  subject  him   to violence and incapacitate him and deform him".  According to Bhim  Sein his son was doing all these because he  had  been found  out in the act of removing jewelleries and cash  from

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the vaults, safe and steel almirah.  On August 25, 1960 nine days after his first complaint, Bhim Sain went to the  Court of  the  Chief  Presidency  Magistrate  and  made  a  formal complaint  against  the appellant  unders.350of  the  Indian Penal Code.  The complaint which he lodged before the  Court shows  that  he had tried to bring up his  son  properly  by giving him a sound education and also by initiating him into his own line of business.  The son, however, picked up "high ways of living and luxurious habits" and used to waste money recklessly. in order to bring him back to the normal path of life he thought of placing him in a responsible position  so that  he might be cured and with this end in view Bhim  Sain made over his business ventures under the name and style  of Card  Board  Paper Products Company to his son.   After  the death of his wife in April 1959 he thought that be would get his son married to a respectable family and hoped that  such a marriage would induce him to settle down.  Accordingly  he got him married to a girl from a highly respectable  family. But  in spite of showering all his affection, his  son  (the first  appellant) was insulting him and making demands  upon him for moneys and putting him in fear of life.  He then set out  the details as to how the first appellant  had  removed jewelleries  valued at about Rs. 25,774/- as also some  cash from  the locker of a Godrej Steel Almirah which used to  be kept in the room of the first appellant, and how, when  Bhim Sain  discovered this loss and asked him about  this  theft, the first appellant flew into a 695 rage,  used  provoking language and tried  to  assault  him. Thereafter the first appellant was regularly threatening him and he had even removed his double-barrel gun and cartridges from  his Almirah and kept it with him causing him  constant fear.  It will be observed that these complaints against the son, whatever may be the justification, were made long prior to the advertisement in the matrimonial column of the Sunday Tribune, Ambala.  At this time Shanta the third daughter was admittedly  living not with her father but with her  brother the  first appellant and so was Rita the youngest  daughter. Though some attempt was made to show that Rita and Bhim Sain were on good terms, the evidence as pointed out by both  the Courts belies the assertion.  Rita, though 13 years old came back from the school even before the second marriage of  her father.  However, she did not stay with her father but lived with  her  brother.  An attempt was made to  show  that  the father  used to go and see her when she went back to  school and  thereafter used to meet her at the  Victoria  Memorial. All this has been negatived.  In our view, one thing  stands out clearly and that is the relations between the father  on the  one hand and the first appellant and the two  daughters on the other were strained and bitter.  If at all, there was positive hostility between them.  The son and the  daughters never  came  to see Bhim Sain even when he was  dying.   The appellant  did not take his son to see his grandfather  even though  the  first appellant admitted that  his  father  was anxious to see his grandson.  The evidence of Amalendu  that Bhim   Sain  had  gone  to  see  Rita  in  Simla  has   been disbelieved.  The Trial Judge called Amalendu a coward and a liar.   The  Appellate Court considered his evidence  to  be unsatisfactory  and  rejected it.  The conclusion  to  which both  the Courts have arrived at is that Bhim Saint  entered into  an agreement with the first appellant in October  1960 long before the meeting between the first respondent and the deceased in answer to the advertisement had taken place.  in that agreement Bhim Sain made provision for the  maintenance and  marriage  of Shanta who was to reside  with  the  first

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appellant.   He  had also provided for the  maintenance  and residence  of Rita though in that agreement no  mention  was made about her marriage.  The learned Advocate for the first appellant made much of this omission as also the omission to provide  for  the maintenance of his mother who  was  living with  him.  But as the learned Judges of the Division  Bench of  the Calcutta High Court pointed out, Bhim Sain was  only 55  years  of  age when he married and made  the  will.   He perhaps  did  not expect to die so soon, nor did  lie  think that  he would not be able to perform the marriage of  Rita, nor  provide  for the maintenance of his mother  during  her lifetime.   Perhaps he did not entertain any doubt that  the first   respondent  in  whose  favour  he  had  willed   the properties  would  not discharge the  obligations  which  he would  have to discharge when he was alive.  At the time  of the  marriage, with a positively hostile family such  as  he had,  the thing that would be uppermost in Bhim Sain’s  mind is what would happen to his wife if she was left  unprovided for.  Bhim Sain’s family would consider Saraswati a stranger to  the  family and she would be regarded as  an  interloper even  after her :marriage and if anything were to happen  to him she would be left 696 to  the mercy of his inimical children.  It is  but  natural for  Bhim  Sain in these circumstances to  provide  for  his newly wed wife even without that wife asking or  importuning her  husband  to  do  so.   Apart  from  this  thinking  one important  circumstance  is however ignored,  and  that  is, Saraswati was not a gold-digger as the expression goes.  She was  an educated lady, came from a good family, had  been  a medical practitioner for about 13 years, had her own  status in  life and was as lonely and longing for a male  companion as  Bhim  Sain  was for a woman companion.   In  the  letter written  by  Puri to Bhim Sain’s Personal  Assistant  giving particulars  of  Saraswati’s education and family,  she  has described herself as follows :               "The lady is healthy and in medical profession               Since  13 years She now wishes to settle  down               in   life  only  for  companionship  and   not               interested in procreation.  The  preliminaries               suit  both  and  the rest  can  be  judged  on               personal meeting only.  The lady is particular               (keen) on a teetotaller and other sober habits               though  quite  high intellectually  and  quite               modern, though not ultra modern." Bhim  Sain was equally frank when he informed  Puri  through his  Personal Assistant that "His wife died here  only  last year.  His 2 daughters are married in a millionaire  family. His 3rd daughter has just passed B.A. and is living with her brother.   Seth  Arora has only one son  (who  has  recently married)  has got separate, independent, lucrative  business and is living separately.  His youngest daughter is studying in Loreto Convent School at Simla.  Seth Arora is a  wealthy renowned  merchant  of Calcutta.  He is  of  attractive  and "dignified  personality.   He is in  perfect  sound  health, stout and energetic.  He is non-smoker and non-drinker.   He comes  from West Punjab (Sialkot District) in  1930.   Since then  he is carrying on with the business."  Regarding  what was  meant  in  the advertisement  by  "liberal-minded"  the letter explained that by it was meant that the person should not be slave to the old customs and to orthodox views. From  this  correspondence  it  is  obvious  that  practical consideration  of companionship was the dominant feature  of the   arrangement   while  the  first  respondent   had   no attachment, Bhim Sain had.  But there was no question of the

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first respondent feeling anxious about her future as it  was clear that Bhim Sain was impressing upon the lady who  would be  his  wife at the very outset that his  having  a  family would  not cause any concern to her.  Even during the  talks Bhim  Sain seems to have mentioned to the  first  respondent that he would make a will in her favour.  As we have noticed Bhim  Sain  was  disgusted  with the  manner  in  which  his children had treated him and it was this attitude after  the death  of his first wife that made him a lonely man  longing for  a companion, He also knew that he had provided for  his children and that he had no further obligations, except  for providing for the marriage of his youngest daughter Rita and for  maintaining his aged mother.  But, as we  have  already said,  he  probably thought he would be  able  to  discharge these, two duties. 697 during  his lifetime.  His mother, it is said, was 75  years old,  while  he  himself  was only 55  years  old.   On  any actuarial considerations he was likely to survive his mother and perform the marriage of his youngest daughter Rita.   In our view, there is nothing suspicious about the will on this score. The  learned  Advocate for the appellants  however  cited  a passage from Halsbury’s Laws of England, Vol. 17, Art.  1311 at  p. 681 (3rd Edn.) to persuade us to raise a  presumption of undue influence against Saraswati.  That passage says :               "Of  other  relations from  the  existence  of               which  the Court will presume the exercise  of               undue  influence those which have perhaps  led               to  the  avoidance of the greatest  number  of               conveyances are those of spiritual adviser and               devotees,   medical  attendant  and   patient,               principal  and agent, and that of a man  to  a               woman to whom he is engaged to be married." Whatever   may  be  the  position  in  England  as  to   the presumption  of  undue  influence in  the  case  of  parties engaged  to be married, it does not, in our view,  apply  to conditions in India.  Even for that matter the conditions in England  today  may  not  justify the  validity  of  such  a presumption.  We find that the cases relied upon in Halsbury for the above statement are all of the 19th Century, and the last of the cases is of the year 1931, and is with reference to  undue influence being exercised by a man over the  woman to  whom  he  is  engaged  to  be  married.   The  tenacious application  of  precedents  may justify  the  statement  in Halsbury,  but  since the 19th Century and after  1931  much water  has  flown  under the bridges.   The  family  law  in England  has  undergone  a drastic  change,  recognised  new social relationship between man and woman.  In our  country, however, even today a marriage is an arranged affair.  We do not  say  that there are no exceptions to this  practice  or that there is no tendency, however imperceptible, for  young persons to choose their own spouses, but even in such  cases the consent of their parents is one of the desiderate  which is so Light for.  Whether it is obtained in any given set of circumstances is another matter.  In such arranged marriages in  this country the question of two persons  being  engaged for any appreciable time to enable each other to meet and be in  a position to exercise undue influence oil  one  another very rarely arises.  Even in the case of the marriage in the instant case, an advertisement was resorted to by Bhim Sain. The  person who purports to reply is Saraswati’s mother  and the  person  who  replied to her was  Bhim  Sain’s  Personal Assistant.  But the social considerations prevailing in this country and ethos even in such cases persist in  determining

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the  respective attitudes.  That apart, as we said  earlier, the  negotiations for marriage held in Saraswati’s  sister’s house have all the appearance of a business transaction.  In these circumstance that portion of the statement of the  law in Halsbury which refers to the presumption of the  exercise of  undue influence in the case of a man to a woman to  whom he  is engaged to be married would hardly be  applicable  to conditions  in this country.  We have had occasion to  point out  the  danger of such statements of  law  enunciated  and propounded for meeting the conditions existing in the 698 countries  in which they are applicable from  being  blindly followed  in this country without a critical examination  of those principles and their applicability to the  conditions, social norms and attitudes existing in this country.   Often statements of law applicable to foreign countries as  stated in  compilations  and learned treatises  are  cited  without making  a  critical examination of those principles  in  the background  of the conditions that existed or exist in those countries.  If we are not wakeful and circumspect, there  is every  likelihood  of their being simply  applied  to  cases requiring  our  adjudication, without consideration  of  the background  and  various other conditions to which  we  have referred.   On  several occasions merely because  courts  in foreign  countries  have taken a different view  than.  that taken  by our courts or in adjudicating oil. any  particular matter  we  were asked to reconsider those decisions  or  to consider  them for the first time and to adopt them  as  the law  of  this country.  Only one instance  will  suffice  to illustrate this tendency.  In Jagmohan Singh v. The State of U.P.(1) in which the constitutional validity of awarding  of capital sentence permissible under s. 302 Indian Penal  Code was-challenged, because the American Supreme Court in Furman v. State of Georgia decided on June 29, 1972, of which  only a  copy  seems to have been filed, took  a  particular  view regarding  awarding of the capital sentence.  The  arguments advanced before the U.S. Supreme Court were adopted in  toto before  this  Court  and in support of  the  arguments  that capital  sentence was unconstitutional substantial  reliance was  placed on the social statistics and data prevailing  in foreign countries.  This method and approach occasioned  the following  comments from the Court to which one of us  (Beg, J.)  was  a  party,  Palekar, J.,  speaking  for  the  Court observed at p. 550 :               "We have grave doubts about the expediency  of               transwestern   planting  experience   in   our               country.  Social conditions are different  and               so  also the general intellectual  level.   In               the context of our criminal law which punishes               murder,  one cannot ignore the fact that  life               imprisonment  works  Out in most  cases  to  a               dozen  years  of imprisonment and  it  may  be               seriously   questioned   whether   that   sole               alternative will be an adequate substitute for               the death penalty.  We have not been  referred               to any large scale studies of crime statistics               compiled  in this country with the  object  of               estimating  the  need  of  protection  of  the               society against murders." No doubt an objective and rational deduction of a principle, if  it emerges from a decision of foreign country,  rendered on  pari  materia legislative provisions  and  which-can  be applicable to the conditions prevailing in this country will assist the Court in arriving at a proper conclusion.   While we  should  seek light from whatever source we can  get,  we

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should  however  guard against being blinded  by  it.   That apart,  unlike the position in England at the time when  the Courts  recognised  the  presumption  relied  upon  by   the appellant,  cur  law of evidence is codified in  the  Indian Evidence Act.  Every presumption, (1) [1973] 2 S.C.R. 541. 699 barring  some special ones created by other enactments.  has to be related to a provision of the Evidence Act. It  is true that Wills are. transactions of a  nature  which give rise, to certain special considerations affecting their validity  irrespective  of the time when or the  country  in which  they are made.  Dispute over Wills  invariably  arise after the testator’s death so that the alleged maker of  the Will  is  not before the Court to deny the execution  or  to testify  about  the  circumstances  in  which  the   alleged disposition was made.  There are such possibilities of fraud and  fabrication,  particularly in cases of old  and  feeble persons, that Courts have to be very circumspect in  dealing with: them and scrutinize the surrounding circumstances very carefully.  This is not less, if not much more, necessary in a  country  like  ours where  misplaced  confidence  of  un- sophisticated  persons  is  often  abused  by  cunning   and unscrupulous  individuals and perjury is not  less  frequent than  elsewhere.   One  of us, Beg.,  J.,  had  occasion  to examine  this aspect of the matter in Smt.  Kamla Kunwar  v. Ratan Lal,(1) where it was observed, inter alia, at p. 307 :               "  Unlike  the ancient  Romans,  amongst  whom               will-making became a widely prevalent  custom,               so much so that it was considered  practically               a hall-mark of respectability,’ people of this               country  do not regard it- as an obloquy or  a               departure  from the norms of  correct  conduct               for  an  owner of property to fail to  make  a               will  before dying.  Testamentary  disposition               of property is still the exception and not the               rule  here.  It is generally resorted  to  for               exceptional reasons such as the ones sought to               be made out in the will under consideration in               the  instant  case.  The  usual  and  ordinary               modes  of  thought and conduct of  affairs  by               property  owners  at a particular  time  in  a               country are not irrelevant in considering  the               circumstances in which an alleged will is said               to  have been made.  There is, of  course,  no               prejudice against will-making in this country.               But,  the  fact that it is generally  made  in               unusual  or exceptional circumstances here  is               worth  remembering as it may place the  burden               of   proving  those  circumstances  upon   the               propounder  of  the will  if  its  genuineness               becomes doubtful.  The social context and  the               possibilities  of  perpetrating fraud  and  of               exploiting the infirmities of mind and body of               the  weak  or  the  aged,  which  will-making,               offers to the unscrupulous. could also explain               the  meticulousness  and  rigour  with   which               circumstances  surrounding the alleged  execu-               tion  of  a  will  are  to  be  examined  when               suspicious features are present." Apart  from general considerations emerging from the  nature of  a  Will  and the circumstances  which  not  infrequently surround the execution of it, there are other matters  which are  peculiar to the times and the society and perhaps  even to  the  person  making  the Will and  his  or  her  family.

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Inferences arising from relationships between a (1) A.I.R. 1971 All. 304,307. 700 testator  and a legatee are certainly so dependent upon  the peculiarities  of  the  society or community  to  which  the testator and the legatee belong, their habits, and  customs, their values, their mores, their ways of making and feeling, their  susceptibilities  to particular kinds  of  pressures, influences,  or inducements that it seems very difficult  to reduce  them to a general rule applicable at all  times  and everywhere  so as to raise a presumption of undue  influence from  a particular type of relationship.  The only kinds  of relationship  giving  rise to such  presumptions  are  those contemplated  in  s.  11 of the  Evidence  Act.   Any  other presumption  from a relationship must, to be acceptable,  be capable  of beeing raised only under s. 114 of the  Evidence Act.    Such  presumptions  of  fact  are  really   optional inferences  from  proof .of a frequently  recurring  set  of facts  which  make  particular  inference  from  such  facts reasonable  and natural.  If a particular situation  arising from  a  set  of  facts,  which  may  raise  a   presumption elsewhere, is exceptional or unusual here, there could be no question  here  of  applying a presumption  arising  from  a common  or natural course of events.  A suggested  inference of  undue influence would then be a matter of proof  on  the particular  facts  of the case before the Court.   This,  we think is the correct legal position here. The case before us could certainly not fall within s. 111 of the Evidence Act.  There is no presumption of law or fact in this  country  that a woman to whom a man is engaged  to  be married is in a position to dominate his will so as to over- ride his own real intentions.  It is not mere influence, but undue  influence, which has to be proved by the party  which sets  up  such  a  case.  We think  that  a  plea  of  undue influence, where set up, is a special plea.  Section 103  of the Evidence Act places the burden of substantiating such  a plea on the party which sets it up. Another  reason  why no presumption such as has  been  urged before  us can have any relevance to the facts of this  case is  that the will was executed after the marriage.   Perhaps in  order  to get over this objection, expert  evidence  has been  adduced  to prove that the date of the will  has  been altered from 7th February to 8th February.  Even if the date has been altered, as the Judges of the Appellate Court  have held,  it  was altered by the testator himself  in  his  own hand.  Nothing has been suggested nor is it the  appellant’s case  that  it was altered by any one else.   If  Bhim  Sain himself  altered it either he could have altered it  immedi- ately he wrote the will from 7th February to 8th February on discovering  his  mistake or he could have altered  it  long after  the document was executed.  The first possibility  is more  probable,  because  experience has  shown  that  often enough people have put a wrong date and immediately  correct it.   Of course, in negotiable instruments etc. the  Bankers or drawees insist on the corrections being authenticated  by the  maker of the instrument by appending his  signature  to the  correction.   This was not that kind of  instrument  of which  any  such course could be insisted  upon  Apart  from this, the clear and cogent evidence of Col.  Vigh and Nelson Das which has been accepted by all the Courts shows that the document was signed on the 8th February.  These witnesses 701 have  themselves  put 8th February as the date  under  their signature.   Even  apart  from this, there  is  no  possible motive  for changing the date from 7th to 8th February.  7th

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February  was the date of the marriage, and even if  it  was executed on the 7th February, there was nothing to show that it  was executed before the marriage on that day.  it  could have  been  executed  after the marriage  because  when  the marriage was taking place on that date there could not  have been any great hurry unless Saraswati made it a condition of the marriage that it should be executed before the  marriage takes place.  No doubt some suggestion was made to her  that the making of the will was a condition of the marriage which Saraswati  denied.  We do not think that Saraswati who  must have  known  that a will is ambulatory and speaks  from  the date  of  the death could have insisted on such  a  document being  executed before her marriage when Bhim Sain could  at any time revoke it. A marriage with such a condition as  was suggested would certainly not have been propitious nor would the chances of the marriage enduring be rosy.  The seeds  of dissension  would have been sown if such a  stipulation  was insisted upon as a condition of the marriage. In  the  instant  case, there was  no  suggestion  that  the testator was feeble minded or so completely deprived of  his power  of independent thought and judgment as to  faithfully carry  out the wishes of the lady to whom he became  engaged and  then married.  In fact, it appears that it was  he  who might  have offered the inducement Voluntarily to  the  lady concerned  to  agree to share his life.  Upon the  facts  of such  a case no presumption of the kind urged before  us  on behalf  of  the appellant could, in our  opinion  reasonally arise in any country, at any time, in any society. To  meet any possible objection an allegation That the  will could  have  been revoked the appellants have  pleaded  that force  and undue influence were exercised upon Bhim Sain  to prevent  him  from revoking the will and  executing  another will  by  which  he  wanted to  dispose  of  his  properties equitably  among his children.  As we have  noticed  earlier the   Appellate   Court  has   rejected   this   extravagant suggestion.  On the other hand it has observed :               "It  appears  from evidence  that  after  Bhim               Sain’s marriage with Saraswati and before  the               children  came  to know about  the  Will  they               definitely behaved shabbily with Bhim Sain" The  circumstances  from which this conclusion  was  derived were  that Bhim Sain was completely ignored at the  time  of Shanta’s  marriage that none of the children appear to  have gone to Bhim Sain before his death and that Bhim Sain  never had  an  opportunity to see his grandson  though  the  first appellant  tried  to make out case that he could not  do  it because of Saraswati.  The Appellate Court however held that there  was  nothing in the evidence to show  that  Saraswati could  possibly have prevented Bhim Sain from going  to  see his grandson.  On the other hand the first appellant said in his  evidence  referring to his father’s desire to  see  his son.   "I know he was anxious to see him but I did not  take my son." 702 We have also considered the alleged suspicious circumstances that  the attestation was made subsequently after true  will was executed and as already pointed out both the Courts have accepted  the evidence of the attesting withnesses that  the will  was attested on the same day and at the same  time  as the  execution  of the will by the testator.   The  evidence relating   to   the  typing  of   the   attestation   matter subsequently  has been fully dealt with by both  the  Courts and we have no hesitation in agreeing with their findings. We  have also no doubt that the Will was genuine.   All  the formalities  required were fully satisfied, it was  executed

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by  the testator in a sound disposing mind and It  was  duly attested as required by law. The appeal is, therefore dismissed with costs. V. P. S.                     Appeal dismissed. 703