NARESH CHARAN DAS GUPTA versus PARESH CHARAN DAS GUPTA

S.C.R. SUPREME COURT REPORTS 1035

the High Court itself to have lost seisin of these cases after the 26th January, 1950, and they had no juris-diction to proceed with the trial. As the High Court directed these cases to be tried by competent court, they could not possibly be sent back for trial to the Special Tribunal assuming that any such Tribunal existed or could be constituted by the Central Gov-ernment. The only court which was competent to try these cases would be the special court under Act XII of 1952 and its jurisdiction could not be ousted as the order of the High Court itself proceeded on the foot-ing that no trial could be held by the Tribunal con-stituted under Ordinance XXIX of 1943. The juris-diction of the special court not being ousted by section 12 of the Act or by the order of the High Court, we are unable to hold that the proceedings before it should be quashed.

The result is that the appeal is dismissed.

NARESH CHARAN DAS GUPTA

v. PARESH CHARAN DAS GUPTA [MEHR CHAND MAHAJAN C.J., BHAGWATI, JAGAN-NADHADAS and VENKATARAMA AYYAR JJ.]

Will-Executed witlz due solemnities by person of competent • understanding-Onus of proving undue infiuence-Undue infiuence

-Meaning of-Indian Succession

Act, 1925 (XXXIX of 1925),

s. 63-Due attestation-Proof of.

When once it has been proved that will has been executed with Jue solemnities by person of competent understanding and apparently 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 testator that can be characterised as "undue". ~ It is open to person to plead his cause before the te~tator and to persuade him to make disposition in his favour. And if the testator

Edward Ezra and Another v. The State of West Bengal Mukherjea ].

Naresh Charan Das Gupta v. Paresh Charan Das Gupta

retains his mental capacity and there is no element of fraud or ccercion, the will cannot be attacked on the ground of undue in-Huence.

All influences are not unlawful. Persuasion, appeals to the affec-tions or ties of mankind, to sentiment of gratitude for past services. or pity for future destitution, or the like,~these are all legitimate and may be fairly pressed on 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 species of restraint under which no valid will can be made.

It cannot be laid do,vn as 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 pure question of fact depending on the appreciation of evidence and the circumstances of each case \Vhether 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. 1 P. & D. 481 ), referred to.

CIVIL APPELLATE JuRISDICTION : Civil 202 of 1952.

Appeal No.

Appeal from the Judgment and Decree dated the 5th day of March, 1951 of the High Court of Judi-cature 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, (Suku-mar Ghose, with him), for the appellant.

Bankam Chandra Banneriee and R. R. Bistoas, for respondent No. 1.

1954. December 2. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This appeal anses out of an application filed by the first respondent for probate of 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

S.C.R. SUPREME COURT REPORTS

(the appellant), and daughter, Indira (the second respondent), The estate consisted of sixth share in some ancestral lands at Matta in the District of Dacca, and house No. 50, South End Park, Calcutta, built by the testator on site purchased by him. By his will, he directed that 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 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 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, tl1e first respon-dent 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 suit. He then filed written statement, and on that, the following issues were framed: (1) "Was the Will inquestion 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, JI. Before them, the appellant did not contest the correctness of the finding of the Addi-tional District Judge that the testator had testamen-tary 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

Naresh Charan Das Gupta v. Paresh Charan Das Gupta Venkatarama Ayyar ],

NQrtsh Charan Das Gupta v. Paresh Charan Das Gupta V enkatarama Ayyar J.

1038 SUPREME COllRT REPORTS [1955] 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 ap-peal, 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( ') "that will has been executed with due solemnities by person of competent under-standing and apparently 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('·). In the present case, it is not in dis-pute that the testator executed the will in ques-tion, and that he had the requmte mental capacity at that time. The burden, therefore, is on the appel-lant 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 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 maintammg 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 petty salary ; and the evidence is that t11ereafter he was practically living apart from the family. In 1928 he married one Shantimayi, who was 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.C. 2; IO E.R. 1192. (2) 1920 A.G. 349·

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 my knowledge .and consent he has married girl of 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 Arnn 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 Arnn 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 pro-perties". 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 there-after. But it is argued that since then, more than 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 ex-tracted did not correctly reflect the then mind of the testator. We have been taken through the entire corres-pondence 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

r954 N are sh Charan Das Gupta v. Paresh Charan Das Gupta Venkatarama Ayyar J.

;. .....

S.C.R. SUPREME COURT REPORTS

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 sense of social humiliation by reason of the inter-caste marriage, and that the recitals in the will were manifestations of sore 111 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 matter for · sur-prise that he should have cut ofl the appellant with small legacy. It must also be mentioned that the net value of the assets as given in the probate peti-tion 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 consider-able. It also appears that at that time his salary was Rs. 60 per mensem and that he had number of children, whereas the appellant is stated to have had basic salary of Rs. 250 per mensem then. The first respondent, his wife and children have all along been dependants of the testator, whereas the appellant had lived apart from him from 1920. And it is not unnatu-ral for the testator so to order the distribution of his estate as to secure the continuance of the ex1stmg state of affairs. The terms of the will, therefore, can-not be relied on as intrinsic evidence of undue influ-ence, 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 had 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-

Naresh Charan Das Gupta v. Paresh Charan· Das Gupta Venkatarama Ayyar J.

N aresh Charan Das Gupta v. Yaresh Charan Das Gupta Venkatarama Ayyar J.

undue influence. The law was thus stated by Lord Penzance in Hall. v. Hall(1):

"But all influences are not unlawful. Persua-sion, appeals to the affections or ties of kindred, to sentiment of gratitude for past services, or pity for future destitution, or the like,-these are all legiti-mate and may be fairly pressed on testator. On the other hand, pressure of whatever character, whether acting on the fears or the h-0pes, if so exerted as to overpower the volition without convincing the judg-ment, is species of restraint under which no valid will can be made. Importunity or thr~ats , 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 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 word, 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 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 state of health as to be capable of exercising his own judgment and volition, uses urgent intercession and persuasion with him to induce him to make will of 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 bv B. The will is not rendered invalid by the intercession and persuasion of B" .

(1) (1868) L. R. IP. & D. 481 & 482. 134

Naresh Charan: Das Gupta

Paresh Charan Das Gupta

Venkatarama Ay:iar J.

J{arcsh Charan Das Gu.Ota

v. Paresh Charan Das Gupta

Venkatarama AyyarJ.

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 posses-sion 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 holograph will, and the evidence of P. W s. 1 and 2 is that if 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 he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce his rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for period of 15 months. No ground has been established for our differing from the High Court in its apprecia-tion 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 .W s. 1 and 2 are the two arrestors, and they stated in examina-tion-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

:S.C.R.

held against the appellant on this contention. The 1earned 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 testa-tor 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 matter of law that be-cause 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 -0n the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testa-tor. This is pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested 1s based on ·consideration of all the materials, and must be ac-cepted. Indeed, it is stated in the judgment of the Additional District Judge that "the fact of due execu-tion 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 1s dismissed, but m the -circumstances, without costs.

Appeal dismissed.

BUDHAN CHOUDHRY AND OTHERS

v. THE STATE OF BIHAR.

[ME.HAR CHAND MAHAJAN C. J., MuKHERJEA,

S. R. DAs, V1VIAN BosE, BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.]

Constitution of India, Al'ticle 14-Code of Criminal Procedure ~ (Act V of 1898), section 30-Whether ultra vires the Constitution-Article 14-Reasonable classification-Not forbidden-Test of per-missible classification-Necessary conditions-Constitution-Whether

N ar-.sh Charan Das Gupta v. Paresh Cha an Das Gupta Venkatarama Ayyar J.

December