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PETITIONER:

NARESH CHARAN DAS GUPTA

Vs.

RESPONDENT:

PARESH CHARAN DAS GUPTA

DATE OF JUDGMENT:

02/12/1954

BENCH:

AIYYAR, T.L. VENKATARAMA

BENCH:

AIYYAR, T.L. VENKATARAMA

MAHAJAN, MEHAR CHAND (CJ)

BHAGWATI, NATWARLAL H.

JAGANNADHADAS, B.

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

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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),

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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

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(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

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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

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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

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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

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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.

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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

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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.