Ajit Chandra Majumdae vs Akhil Chandra Majumdar

Mallick, J.—This testamentary suit relates to the Will of Adhar Chandra Majumdar who died on December 20, 1955. The Will propounded bears the date of Jan-wary 8, 19-39. Ajit the youngest son of the testator who is named as an executor is the pro pounder. The Will is challenged by the remaining two son3 of the testator alive, namely, Akhil and Anil. The testator had another son Arun who died in 1950. Arun''s heirs do not contest the Will. The testator died at a ripe old age of about 90 years and the Will was executed about 16 years'' back, that is, when the testator was 74 years'' old.

The testator was a Government servant, and it is in evidence that at the time of his superannuation in 1932 he was drawing a salary of Rs. 275 per month, and thereafter getting a pension of Rs. 124-4 per month. It is clear that he began his official career with a small salary. His eldest son Akhil started life at a very early age, being employed in the Stationery Department of the India Government. He took War Service during the First World War of 1914-18, and during that period he was getting a fat salary. During this period Akhil used regularly to send to his father a sum of Rs. 100 per month. On returning back after the War he paid his father a substantial sum not less than Rs. 2000. Apart from this he used to make regular contribution to his father as is expected of an earning member living in joint family. This I get from the evidence of DT. Anil Majumdar which I have no reason to disbelieve and which is evidently acceptable. Anil himself is best educated amongst the sons of Adhar. He became a Medical Graduate of the Calcutta University in 1922 and a House Surgeon in the Medical College. He is apparently a successful medical practitioner. He is now a lecturer in the R.G. Kar Medical College and was appointed an Examiner of M. B. Examination of the Calcutta University. For years he has been running a motor car. According to him during all the years he has been living with his father he has been making contribution to the family. This evidence is also eminently acceptable and I have no reason to disbelieve Anil on this point. The third brother Arun was a railway employee drawing a small salary and he was also in the habit of making contribution to the family when he lived with the family, though his contribution was modest. Ajit the younger son did not receive general education and did not read up to even Matric Class. He had training in electrical works at Tata Workshop at Jamshedpur and read in Tata Technical School. He was there from 1924 to 1928. On coming back to Calcutta he got an appointment with the Calcutta Electric Supply Corporation as an apprentice for two or three years. While working there he started business at 10/1 Cornwall''s Street. The business was to carry out maintenance work in various premises. His father assisted him financially at the initial stage and the other brothers did assist the younger brother in a variety of ways. Later on, the business proved to be successful and it is common case that he rendered substantial financial assistance to his father in the matter of the construction of the house. According to Anil, Ajit paid about Rs. 5,000 but according to Ajit himself he paid the entire sum of Rs. 12,000 for purchasing the land, and another Rs. 12,000 for construction of the building. Evidence has been given of the cheque counterfoils to show the payment of consideration money for the purchase of land by Ajit, but such evidence is not sufficient to enable me to hold that the money was his. Adhar had no banking account, and it is in evidence that he utilised Ajit''s account for his own purpose. It might be that Adhar''s money was kept in Ajit''s account and it is not disputed by Ajit that Adhar had money which was used partially for the purpose of constructing the house. Ajit did not tender his account books and his bank pass books to prove that he had Rs. 24,000 spare money of his own to give to his father for constructing the house. He started his business, as indicated before, in 1929, and unless convincing documentary evidence is produced I am not prepared to hold that he would make sufficient profit in a few years'' time to make such a large advance to his father. It is highly improbable and not acceptable to me. The evidence of Anil is more, acceptable to the effect that Ajit gave to his father a sum of round about Rs. 5,000 for the purpose of the house; the balance of about Rs. 35,000 has been contributed by Adhar out of his saving. From the evidence I am satisfied that the house cost Adhar about Rs. 40,000. Adhar was a saving man and out of the saving from his own income supplemented by the contributions made by his sons and sums received by him as dowry at the time of the marriages of Akhil and Anil amounting to Rs. 3,500 the house was built. This receipt of dowry I get from the evidence of Anil which I accept. By such a process of saving bit by bit a fund was built up by the old man so that he could have a house of his own in Calcutta to die possessed of and which is the subject matter of the present ruinous litigation. The passionate desire of Adhar that the house should be preserved for the family and should not be sold is further evidenced by his letter, dated January 10, 1939, to Ajit from Puri only two days after the execution of the Will, to which reference will be made later.

Adhar was greatly attached to each of his children Adhar was in the habit of keeping diary. Many of the diary entries have been exhibited in this case. A perusal of these entries leave no doubt in the mind that not only Adhar did not nourish any grievances against his sons but on the other hand he had great affection for each of them. He was naturally proud of his second son Anil who established himself in the medical profession and was appointed an Examiner of M. B. examination by the Calcutta University. To a middle class Bengalee, to be appointed an Examiner by the Calcutta University is a great recognition and the father felt great pride when Anil was so appointed. Adhar records this in his diary. He was equally attached to his eldest son Akhil and his wife and for years had his meal from Akhil''s kitchen when the sons separated in mess. His diary entry recording the death of Akhil''s wife betrays his strong love and affection for Akhils wife. With respect to the other sons also Adliar entertained very good feeling. As I heard the oral evidence tendered in this case and read the letters and diaries tendered, I had no doubt in my mind that at no period of his life Adhar entertained any grievance against any of his sons, but on the other hand he entertained very tender feeling for each of them.

Adhar, as stated before, lived to a ripe old age, and all his sons were grown up, were married and had families of their own. When living together, one expects occasional friction in such a state of affairs. In Adhar''s family there were also frictions. These frictions led to Anil''s leaving the family and live separately when the family was living at s\\ rented house at Guru Prosad Chaudhuri Lane. He left in 1935 but lie was brought back in 1938 after the house in Nalin Sarkar Street was constructed. According to Anil the reason why he was compelled to leave house was Ajit. There was no love lost between these two brothers. Anil could not stand the aggresive and domineering attitude of his brother Ajit. Ajit in his turn was manouvering to drive away Anil from Adhar''s house. Chaud Mohan Chakravarty, an Advocate practising in the Court of Small Causes, tendered evidence in this case. He was and is Ajit''s lawyer. According to him in 1946 at the request of Adhar he drafted a notice of Anil requiring him to quit and vacate the premises on the expiry of July 194G. The letter was to be addressed by Adhar to his son Anil. This letter is Ex. V. It was never sent to Anil. I have no reason to disbelieve Mr. Chakrabarty when he said that he was instructed to write this letter. According to him, Adhar came to give instructions and nobody came along with him, as far as he could remember. I am, however, inclined to think that Ajit took his father to the lawyer. In any event whether Ajit accompanied his father or not, I have no doubt in my mind that Adhar was persuaded to go to the lawyer to have a notice drafted to compel Anil to leave the house. This Adhar was made to do at the instance of Ajit and against his own will. Adhar, however, could not be persuaded to send the letter. Adhar did resist the pressure of Ajit to send the letter to Anil because his affection for Anil proved too strong. I attach great importance to this piece of evidence. It proves in the first place that Ajit had a hold on his father Adhar to do something against his will. In the second place, it proves that Adhar has so strong- love and affection for Anil, that Ajit failed to persuade Adhar on tiiis occasion to send the letter to Anil and drive him from tile house in 1946. From July 12, 1943, members of the family began separate messing in three groups. Anil''s family one group, Akhil''a family one group and Adhar with Ajit the third group. This was inevitable and accepted as such by Adhar. Adhar no doubt began messing with his youngest son Ajit separately from his '' two other sons. But from December 1944 Adhar''s meals were supplied by Akhil. This fact shows that so far as Adhar was concerned separate messing did not mean that he was annoyed with any of his sons.

By the end of 1938 Adhar went to Puri. At that time he was not in good health and he was T4 or 75 years of age. He was accompanied by one Narain Chunder Pramanik belonging to the same village Chapra in Kusthis. Adhar was a friend of Narain''s Jethamahasay and Narain used to call Adhar "Jethamahasay". Narain was sent for to accompany Adhar to Puri. It is not disputed as indeed it cannot be disputed that Narain accompanied Adhar. According to Narain, Adhar did not go out very much he used to take a little stroll by the seaside morning and evening. Apart from that he was always in the house. He did not go out to meet people either in their house or in any hotel. Narain invariably accompanied Adhar. He was an attendant very much attached to Adhar and Adhar loved him. Narain''s evidence is that Adhar did not execute any Will at Puri. Adhar used to write letters to his family and used to receive letters from them. There is no dispute that Akhil used to write letters to Adhar and get letters from him. The other son to whom Adhar was expected to write is his son Ajit and I hold that Adhar used to write to him and receive letters from him. A letter written by Adhar to Ajit has been exhibited in the case. Ajit, however, denies that he wrote any letter to Adhar, as he was not in the habit of writing letters. I do not accept this evidence of Ajit and I hold that Ajit also used to write letters to Adhar, though for purpose of his own he is now denying it. It is at Puri that the Will in sxiit was executed. By this Will, the only substantial property at Nalin Sarkar Street belonging to Adhar was bequeathed to Ajit to the exclusion of all others. Adhar''s wife got a right of residence and Ajit was to pay Es. 5 per month to her. The ancestral property, the value of which is doubtful and problematic is left to the sons equally. The net result of the Will is that Ajit the youngest son of the testator gets practically the entire estate to the total exclusion of the three other sons of the testator. I do not find in the Will itself any reason why it should be so, nor do I find any reason from the other evidence as to why the testator should behave in such a strange manner. In the light of the surrounding circumstances the Will appears to me to be very unnatural and I hold accordingly. Such an unnatural Will is bound to raise the suspicion of the Court.

The Will is a holograph Will. The pro pounder''s ease is that it was copied by the testator from a draft prepared by an attorney Abhoy Pada Das. This draft has been tendered in evidence. It is Ex. C. The draft appears to have been corrected on 18th August 1944 after the death of the testator''s wife Sm. Basanta Kumari. The bequest made in favour of Basanta Kumari has been penned through. But the additions made in the draft should be noted. The additions are "Puri Krishnabas Gourbatsahi "8-1-39" at the top. The second important addition is a clause after the bequest of the Calcutta house to Ajit to the following effect"in consideration of the very valuable help I got from "him in every respect during the construction of the building and "after. (Sd.) A.M. 18-8-44". After deleting the clause in the Will for payment of annuity of Rs. 5 per month and direction to pay debt out of the premises, there are notes in the margin to the following effect: "Not necessary now" "no debt I leave" initialled by the testator and the date given. The names of the attesting witnesses also appear in the draft in the handwriting of the testator, apparently, written at the same time. At the end of the draft there is a writing in the hand writing of the testator to this effect: "Narayan Chandra Pramanik of Chapra "was also present" initialled by the testator. If a testator intends to alter the dispositions made by him in his Will by executing a second Will, he may reasonably be expected to affect alteration of the draft of the first Will. But in the instant case there is no such intention. On the face of it, the alterations purport to confirm the Will and certainly does not give any indication that the testator intended to revoke or alter the Will. Why then should the testator consider it necessary to effect an alteration in the draft as he did Mr. B.K. Ghosh the learned Counsel for the Defendant submitted that Ajit caused the alterations to be effected by the testator with a view to create evidence in his favour and Ajit had the power to make the testator do what he wanted him to do. Be that as it may, the holograph Will is an exact copy of the draft in original.

According to Ajit, the testator showed him the draft shortly before leaving for Puri telling him that he had the draft of the Will prepared by Abhoy Pada Das, Attorney, and he intended to execute a Will in the same terms, to which Ajit replied that he could do what he wanted and that Ajit had nothing to do with the matter. I am unable to accept this evidence of Ajit to the effect that he was absolutely disinterested in the testamentary dispositions in his favour of the Calcutta house to be made by his father. I wholly reject his evidence to the effect that Adhar took the initiative in the matter of preparation of the Will. I do not believe Ajit''s evidence when he said that he saw the draft for the first time when his father showed him the draft shortly before going to Puri. I hold that Ajit took the entire initiative in the matter. If Adhar intended to execute the Will before leaving for Puri and went to Abhoy Das for a draft, he would have executed the Will at the office of Abhoy Das. That would have been natural and I see no difficulty in the way. Secondly, if Adhar went to Abhoy Das to give instructions to prepare the draft Will, he would have given reason to Abhoy Das for making a bequest in favour of Ajit to the exclusion of his other sons. It is important to note that Adhar when effecting an alteration of the draft Will in 1944 thought it necessary to set out the consideration for leaving the Calcutta house to Ajit. If the testator thought it necessary to set out the reason in 1944, I do not see any reason why he should not give the reason to Abhoy Pada when he instructed him to draft the Will. I hold that the entire initiative in the matter of preparation of the Will was that of Ajit as he intended to have the Calcutta property exclusively, depriving his other brothers. For that purpose shortly before Adhar left for Puri, Ajit went to Abhoy Das and on Ajit''s instructions the draft was prepared by Abhoy Das and made over to Ajit. Abhoy Das is no doubt dead now but it is common knowledge that the office of a dead attorney is carried on by others. No attempt has been made by the pro pounder to find out the attorney who is running the office of Abhoy Das and to produce the Day Book if available to prove that it was Adhar and not Ajit who gave instructions to prepare the draft Will. Ajit is the principal beneficiary under the Will. He is the executor. When coupled with all these facts one considers that Adhar had no grievance against any of his sons and was greatly attached to each one of them, one is bound to conclude that the entire initiative in the matter of the Will in suit was that of Ajit and not of Adhar. I hold that Ajit went to Abhoy Das and on his instructions Abhoy Das prepared the draft and made it over to Ajit.

The Will in suit is a verbatim copy of the draft prepared by Abhoy Das. But where was it written by Adhar According to Ajit he came to know of the execution of the Will from his father''s letter, dated January 10, 1939 from Puri. Later on on September 26, 1941 the testator made over the Will to Ajit. This is evidenced by a receipt signed by Ajit and Adhar at the back of an used envelope of a letter written by Akhil (Ex. F). There is no evidence on the point as to where Adhar copied the Will from the draft. According to Narayan who was always in the company of Adhar, no Will was executed at Puri. No straight question was, however, put to him as to whether he had ever seen Adhar writting the Will. In the absence of positive evidence, one is left to guess whether the Will was written by Adhar at Puri or at Calcutta. It seems to me, however, that Adhar wrote the Will from the draft at Calcutta. If Adhar wrote the Will from the draft at Puri intending to execute it at Puri why should he not state that at Puri the Will was executed. It does not appear in the Will that it was executed at Puri. It is important to note that in the corrected draft in the handwriting'' of the testator we find the testator writing"Puri Krishnabash Grourbatsahi" at the top. If in 1944, the testator thought it necessary to put the address at the top to indicate where the Will was executed, the testator would certainly have indicated that the Will was executed at Puri, by at least writing the Puri address at the top. The absence of any indication in the body of the Will at any place not even at the top leads me to think that the Will was written by the testator not at Puri but at Calcutta. The fact that no place was mentioned in the Will as to where it was executed, shows that while writing the Will the testator was not certain where it was to be executed. The testator appears to me to be a man who would not omit or forget mentioning the place where he intended to execute the Will. If he intended to execute the Will either at Calcutta or at Puri while writing the Will he would certainly have mentioned the place. Its absence leads me to think that at the time of writing the Will he was not certain where he would execute the Will, or whether he would execute the Will at all. In my judgment, at the time of writing the Will, that was the mental state of the testator.

The question naturally arises, if the testator was in such a state of indecision, why did he at all copy the Will at Calcutta If I can persuade myself to believe that the testator copied the Will on his own volition without being pressed or persuaded by anybody, that would be a very strong reason for me to pronounce in favour of the Will. I do not believe, however, that the testator wrote the Will from the draft out of his free will. The testator I believe was persuaded to write the Will not out of his free will but under pressure from Ajit. It is in evidence that Ajit had power to persuade Adliar to go to a lawyer to draft a notice on Anil to quit and vacate the house, though ultimately Adhar could not be pursuaded to send the letter to Anil. Exactly the same thing happened in the matter of this Will. Ajit after having procured the draft from Abhoy Das, could succeed in persuading Adhar to write the Will at Calcutta before his departure to Puri. but he did not succeed in persuading Adhar to execute the Will. Just as Adliar was made to go to Chand Mohan Chakravarty, the lawyer, to draft a notice on Anil to quit and vacate the testator''s house, against his own free will at the instance of Ajit, similarly Adhar was made to copy the Will from the draft not on his free will but under pressure from Ajit. In both the cases, however, Ajit failed in his objective. So far as sending the notice, he failed totally. So far as executing the Will, he failed for the time being, though ultimately the Will appears to have been executed. If Adhar intended to write the Will on his free will with the object of executing it, he would have executed the same at Calcutta and would have noted Calcutta as the place where the Will was written, at least at the top. I hold that Adhar wrote the Will at Calcutta, not voluntarily but at the instance and under pressure of somebody else and that somebody is Ajit, who is the only man to be benefited by the Will. In any event, it has not been proved to my satisfaction that the Will was copied from the draft by the testator out of his free will. That was the duty of the pro pounder to do. Probabilities of the ease are definitely against any hypothesis that it was written voluntarily by the testator. Ajit in 1938-39 was a full-blooded young man of 32 or 33 years of age. It is in evidence that prior to that he was in conflict with the authorities and was taken to custody by the police. According to Anil, his elder brother, he was of a boisterous temperament with criminal propensities. But that is an overstatement. I believe Ajit to be a young man of aggressive personality. I accept Anil''s evidence to this extent that Ajit was aggressive and was in the habit of browbeating his father. Adhar had to submit to Ajit''s Will and I believe Anil''s evidence in answer to QQ. 71, 72, 73 and 74:

What was the relationship between your father and your youngest brother Ajit Majumdar after you came to stay at Nalini Sarkar Street that is, from 1938 up to 1941 When I was asked by my parents to come back, my father said to me, "do not remember those old "bitterness, we have forgotten everything, things will "be all right for you, your youngest brother will not "annoy you any more, you come back". But to my surprise on return I found there was recurrence of the same things again and furthermore I found that the relationship between my father and my youngest brother had altered a great deal. It appeared to me that my youngest brother had become lord of the house and his dictates had to be carried out by one and all and on occasion he even ordered my father which my father had to carry out or was compelled to carry out.

Can you give his Lordship any instance why do you say Ajit to be the lord of the hovise On one occasion, our house was constructed by mis tries no doubt, but some portion of the work was given contract to Bird and Company They constructed our patent stone floor and bills had to be paid to them. It was near about the time when we came to the house, earlier part of our coming to the house. I do not exactly recollect the date. My father promised payment to that particular party on a certain date. Accordingly they came to receive payment and my father asked my youngest brother "you bring out the money and I "shall pay it to the party". My youngest brother said "No, I won''t make payment today". My father said "I have promised that today I shall make the "payment and I have ready money why shall I not "make payment" "I tell you I will not pay" that was his reply. My father persisted and said "You "bring out money". Then he compelled my father not to make the payment. He said "You go and tell him "that I won''t pay"- My father had to tell the party "I am sorry: I cannot pay it.

Have you got any other example? Yes, on another occasion, our Baitakkhana is rather a long hall and I utilised half of it as my chamber and the hall, long hall, looks uncanny for professional purposes; so I asked my father''s permission to have a partition so that it could be divided into three parts. My father gladly permitted. Accordingly I purchased a ready-made wooden partition which is still now there. Over that setting up of the partition my father was subjected to much humiliation and rebuked by my youngest brother that for a time I did not set up the partition. Later on some weeks after when everything settled down, I had to put up that partition.

Have you got any other example?-Yes, this repeated off and on. One day I heard a row in my father''s room. My father''s room and my youngest brother''s room are on the southern end facing the road; next is the staircase and next is mine. I heard a row in my father''s room. My youngest brother was shouting. I could not follow the exact meaning; he was shouting "Won''t you do what I am asking you to do or not? If you don''t I shall take back whatever money I have given at once". This sort of thing happened off and on. This demanding of money and vilification of father occurred off and on.

He knew that whatever money his father had has been used up in building the house and Ajit gave some money for completing the construction of the house. Apparently there were some debts still outstanding. The father was not in a position to pay off the debt or to return back the money which Ajit had given to his father for completing the house except by selling the house, and it was impossible for the old man even to contemplate sale far from actually selling the house. Ajit knew it and this was a great hold Ajit had on his father. Even though when Ajit gave money to his father voluntarily without expecting to get it back, Ajit would make his father bend to his will by claiming back, Ajit money otherwise. I hold that this pressure Ajit had no scruple to apply to his old father Adhar, whenever occasion arose, to meet his own end. I am sure in my mind that this pressure was exerted by Ajit to make Adhar write out the Will, but he did not succeed in persuading Adhar to execute the Will at Calcutta. When, therefore, Adhar went to Puri, the Will was with him. It is because of this that Narain did not see Adhar writing the Will which he would have done, had the Will been written by Adhar at Puri. Having regard to this fact that the Will has not been proved to have been copied voluntarily by Adhar from the draft prepared by Abhoy Babu, but at the instance of and under pressure from Ajit, the Will in suit, even though it Section a holograph Will,, is not entitled to the additional sanctity and consideration that the Court normally gives to a holograph Will. For reasons given above, I am not prepared to make any presumption in favour of this holograph Will. On the facts and circumstances of this case, I am not satisfied that at the point of time when the Will was copied by the testator from the draft prepared by Abhoy Babu, he was acting of his own volition. I would, therefore, require satisfactory evidence that the testator approved of the terms of the Will and executed it out of his own free will.

The Will is attested by four witnesses, viz., Kabiraj Fatik Chandra Das Gupta, Rasik Chandra Das Gupta, Debi Prosad Lahiri and Gobinda Madhav Chatterjee. At the time of execution of the Will, Debi Prasad Lahiri wrote against his name "Krishnagar (Nadia)" and Gobinda Madhav Chatterjee wrote against his name "Katwa". It is clear that subsequently against the name of Rasik Chandra Das Gupta is written, "Goila. Barisal" and against the name of Gobinda Madhav Chatterjee is written "Pleader". Those writings are in different ink and in the handwriting of the testator. It must have been made when the testator corrected the draft in 1944. I have no hesitation in rejecting the evidence of Gobinda Madhav Chatterjee that the word "Pleader" against his name was written by him. Clearly the handwriting is that of Adhar and not of Gobinda Madha v. Of these four attesting witnesses, Debi Prasad and Gobinda Madhav tendered evidence before me. Gobinda Madhav is a lawyer but he was enrolled after coming back from Puri in January, 1939, so that at the time of the execution of the Will he was not a Pleader. According to Gobinda Madhav, all the attesting witnesses, except Rasik, were residing at the Beach Hotel, Puri. Rasik, according to him was probably not residing at the hotel, but he used to come to the hotel and stay for hours. He proves his signature in the Will He also stated in his examination-in-chief that the other signatures in the Will were put in his presence. He did not see Ajit at Puri. He does not prove anything more in his examination-in-chief. In cross- examination he stated that he wrote the word "Pleader" in the Will shortly after he put his signature. This is not correct. I am satisfied that the word "Pleader" was written in the Will subsequently in 1944 by the testator. He stated that before being asked by Mr. R. Majumdar, Attorney, to do something in connection with the Will, he did not know Ajit or meet him. He was challenged on this point and a letter was shown to him written by him to Ajit, which proves conclusively that he was in active touch with Ajit from long before the hearing of this suit. This letter is dated February 10, 1956. According to Gobinda Madhab, he did not know Adhar before. He never saw him in Calcutta either before or after. This witness is not a very satisfactory and dependable witness. As indicated before, on two points he has not spoken the truth. His demeanour also does not appear to be satisfactory. It would not be safe to put much reliance on this witness. In any event, his evidence does not go further than signing of the Will by Adhar and attestation by the attesting witnesses. His evidence is not sufficient to prove that Adhar approved of the terms of the Will, except by making a presumption from the fact of execution.

The next attesting witness, Debi Prasad Lahiri, was also residing at the Beach Hotel at Puri. He was at that time the special representative in charge of construction of a salt factory at Chilka on behalf of National Chemical and Salt Works. According to Lahiri, Adhar used to come to the hotel very often to meet Kabiraj Mahasaya in the evening. Adhai used to play cards with the Kabiraj Mahasaya and the proprietor of the hotel. He used to come with an attendant who is a sort of superior servant. He was having enviable health at that time. In hii presence Adhar put his signature to the Will and he along with the other attesting witnesses put their signatures on the document. At the time there were present the superior servant and the "proprietor of the hotel, to the best of his recollection. He also said that at the time except Rasik, whom he could not place, the other attesting witnesses were residing at the Beach Hotel. It is difficult for me to accept the evidence of Debi Prasad Lahiri to the effect that at the time Adhar''s health was enviable and that he used to come to the hotel regularly for playing cards. None of the sons of Adhar said that Adhar used to play cards and according to Narain (whose evidence I accept on the point), Adhar was in a bad state of health. This is corroborated by Adhar''s letter to Ajit, dated January 10, 1939. I would be very much surprised if an old man of 74 or 75 years of age with indifferent health going regularly in the evening at Beach Hotel for playing cards. The evidence of Narain that Adhar used to take a little stroll in the morning and evening on the sea side and taking rest for the rest of the time in his residence is more acceptable. Lahiri''s evidence to the effect that he did not know Ajit at any time prior to the probable proceedings is open to doubt. Both of them are Barendra Brahmins, which is a small compact community. Lahiri admitted in cross- examination that his address from 1922 was 1/2B, Premchand Baral Street. In the same street lived Jadu Gopal Misra, a lawyer and co-villager of Ajit. Ajit admits to be a frequent visitor to Misra''s place. There is force in the contention of Mr. Ghosh that Ajit must have met Debi Prosad then and consequently the two were known to each other from long before. It is to be noted that both Debi Prosad and Gobinda Madhab are almost of the same age as Ajit. The other two attesting witnesses have not been called by the pro pounder. What appears to me to be very surprising is that each one of the attesting witnesses should be stranger. According to the sons, Anil and Ajit, they do not know any of them. I have no difficulty in believing that Anil did not know any of them. He has no reason to lie on this point. But so far as Ajit is concerned, it is difficult for me to accept his evidence on the point. According to Ajit''s own evidence, he knew of the Will right from 1939 when it was executed. He knew the names of the attesting witnesses. He must have made enquiries from his father as to the particulars of the attesting witnesses, if he did not know them already Again, when the corrections were made in the draft in 1944, how did Adhar come to know that Kabiraj Fatik Chandra Das Gupta was of Mymensingh, Rasik Chandra Das Gupta was of Goila (Barisal) and Gobinda Madhav Chatterjee was a Pleader? Admittedly at the time when the Will was executed, Gobinda Madhab Chatterjee was not a pleader. At least at that time Ajit, who was greatly interested in the Will knew of the particulars of the attesting witnesses, if he did not know the particulars already.

Having regard to the fact that Debi Prosad was all along residing at Calcutta and Gobinda Madhav was residing at Katwa and was frequently coming to Calcutta, Ajit must have come in touch with them because their assistance would be necessary for the purpose of obtaining probate. I believe the letter of Gobinda Madhav to Ajit, dated 10th February, 1956, would not have been written had not Gobinda Madhab known Ajit from before. I believe that Ajit knew Debi Prosad from long before and was in contact with him and Gobinda Madhab from long before this proceeding. It may be that it is because Ajit knew that Debi Prosad was at Puri, that Ajit pursuaded Adhar to go to Puri. It is very difficult for me to accept the evidence of Debi Prosad and Gobinda to the effect that they came to know Ajit for the first time in connection with the probata proceedings shortly before the hearing of the suit.

There is considerable controversy before me as to where the Will was executed. I have indicated already that on the face of the Will, the place of execution do not appear. Mr. Ghose strongly urged that the Will was not executed at Puri but was executed at Calcutta. I am unable to accept it. There is no doubt in my mind that the Will was executed at Puri. The letter, dated 10th January, 1939, written by Adhar from Puri which I accept to be a genuine letter written from Puri proves conclusively that the Will was executed at Puri. The Will was undoubtedly executed at Puri but it is really surprising that the Will should be executed at Beach Hotel. In the draft Will, Ex. C, the testator writes at the top "Puri, Krishnabash, Gourbatshahi". This might seem to indicate that "the Will was executed at the said address. I have already held that Narayan was telling the truth when he said that apart from having a stroll in the sea side morning and evening, Adhar was constantly in his house and never used to go out to see people either at their residence or hotel. I have rejected the evidence of Debi Prosad that Adhar used to come regularly at the Beach Hotel and played cards with Kaviraj Mahasaya and the proprietor of the hotel. Lastly, an old man like Adhar would hardly be expected to go to a hotel for the purpose of executing a Will. It is, to say the least, extremely unusual. These facts does indicate that the probabilities are against the execution of the Will at the Beach Hotel. But I cannot ignore the positive evidence on record. I cannot disbelieve the evidence of the two attesting witnesses that the Will was executed at Beach Hotel. Again accepting Narain''s evidence I must hold that the Will was not executed at Krishnabash where the testator was residing at Puri. Where else then at Puri could the Will be executed except at Beach Hotel? It should not be forgotten that the writing of the draft which indicates that it was executed at Krishnabash was made in 1944, i.e., 5 years after the execution of the Will. It may be that the writing at the top of the draft does not indicate the place of the execution of the Will, but only an indication that at the time the testator was residing at Krishnabash, Puri. If that is so, the writing at the bottom of the draft at the same time to the effect that "Narayan Chandra "Pramanick of Chapra was also present" only indicates that Narayan was present at Krishnabash, Puri, but not present at the time of the execution of the Will. The evidence of Narayan, therefore, is not in conflict with the writing in the draft by Adhar in 1944 at the bottom as indicated above. I am, therefore, led to this conclusion on a review of all the evidence tendered on this point that the Will was executed at Beach Hotel though it was not written at Puri. At the time of the execution of the Will, apart from the witnesses whose names appear in the Will, no other man was present neither Narayan nor the hotel proprietor. If the hotel proprietor was there, I do not see any reason why he should not be an attesting witness. Kaviraj Mahasaya and the hotel proprietor would have been enough as attesting witnesses. There would have been no necessity for the testator to send for two total strangers and comparative youngsters to further attest the Will. I confess that the presence of Gobinda and Debi Prosad as attesting witnesses greatly surprises me. They are most unlikely to be asked by the testator to attest the Will, if they were total strangers and themselves had no desire to be attesting witnesses.

The fact that the Will was not executed at Krishnabash, Puri where the testator was residing but at Beach Hotel where, I have already held that the testator was not in the habit of going every evening for playing cards, is significant. He cannot go there unless he was asked to go there or taken there for the express purpose of having the Will executed. He was taken there or went there alone. Even though Narayan was Adhar''s constant companion, Narayan was not taken. The Will was executed in such a manner that none of the members of Adhar''s family except Ajit may know of it. Otherwise there was bound to be trouble in the family. If Narayan knew of the Will, there was the danger of Akhil, Anil and other members knowing of it. Hence the execution of the Will was procured behind the back of Narayan. It was not difficult to give Narayan a slip and avoid him. I hold Narayan to be substantially a witness of truth, though some of his evidence is over-statements and not acceptable. For example, it is impossible for me to accept his evidence that during every minute of his stay at Puri, he kept the company of Adhar. There must have been time when Narayan was not present. During one such time, surreptitiously Adhar was taken to Beach Hotel for the purpose of the execution of the Will.

It seems to me that Adhar did not know any of the attesting witnesses personally. As indicated before, there is considerable force in the contention of Mr. Ghose that Debi Prosad knew Ajit from before and indeed Debi Prosad was Ajit''s friend. Either Debi Prosad persuaded Adhar to come to Beach Hotel for the purpose of executing the Will or Ajit persuaded Adhar by letter to see Debi Prosad at the Beach Hotel. Otherwise I do not find any reason why Adhar should go to Beach Hotel for the purpose of executing the Will.

It is to be noted that the pro pounder''s case is that all the attesting witnesses including Kaviraj Mahasaya were chance witnesses. None of the members of the family know any one of them. Kaviraj has not been called and no evidence has been given by the pro pounder whether he is alive or not. The fact of Adhar''s going to Beach Hotel to execute the Will cannot be explained otherwise than being brought about by Ajit with the assistance of Debi Prosad. On this point I would expect the diary of 1938-19-39 kept by Adhar to throw some light. So also I expect letters written by Ajit to Adhar at Puri would be of assistance. Ajit denies to have written any letter to Adhar and I disbelieve him. I also disbelieve him when he said that Adhar''s diary for 1938-1939 was not there at the time of his death.

It is wholly unacceptable to me that Ajit could get all the diaries of Adhar except the diary of 1938 and 1939. There is considerable force in Mr. Ghosh''s comments that Ajit was deliberately suppressing the diaries and the letters written by him to Adhar. These documents were likely to contain valuable evidence as to when and where the Will was executed and under whose inspiration. A pro pounder who gets the greatest benefit under a Will who himself takes a leading part in the preparation of the Will, if he suppresses valuable evidence which would throw light showing under what circumstances and at whose inspiration the Will was executed at a very unlikely place like the Beach Hotel, Puri, does it at his peril. Indications are that Ajit was the moving spirit. Having failed to persuade his father to execute the Will at Calcutta, he persisted in his endeavour to persuade his father to execute the Will at Puri. In this matter he must have procured the assistance of Debi Prosad who was well known to Ajit, if not his friend. While accepting the evidence of Debi Prosad and Gobinda that the Will was in fact executed at Beach Hotel Puri. I do not accept their evidence for anything else. The other evidence tendered on the point is not acceptable to me. Even if that evidence is accepted, that does not in my judgment amount to express approval of the terms of the Will by Adhar. It proves nothing more than execution and as I said before, I am not going to make a presumption from the fact of execution that the testator approved the contents of the Will

Mr. Gouri Mitter strongly urged that the letter written by Adhar from Puri on 10th January, 1939 only two days after the execution of the Will is a conclusive evidence of the facts first that Adhar executed the Will and second that he executed it out of his own free volition. It is necessary to examine this letter. I accept Mr. Gouri Mitter''s contention that the letter was in fact written by Adhar from Puri. I have no hesitation in rejecting Mr. Ghosh''s contention that it was procured later on by Ajit from Adhar for the purpose of proving the Will at the appropriate time. The envelope of this letter has not been tendered in evidence. I have no reason to reject Ajit''s evidence that it has not been preserved because people may not preserve the envelope even though they preserve the letter. From the mere absence of the envelope or from the absence of Krishnabas at the top of the letter. I would not be justified in holding that the letter in fact was not written from Puri. There is nothing in the letter to cause any suspicion that it was not written from Puri, and I hold that Adliar did write the letter, dated January 10, 1939 to Ajit from Puri on the said date, i.e., two days after the date of the Will. This being a contemporaneous document written shortly after the date of the Will, it is very important and I consider it necessary to scan the letter carefully. The letter is in Bengali language and it is Ex. D. The English translation of this letter made by the Court translator reads as follows:

Panchu, two months have elapsed since I came here. I have had a nice darshan of Thakur (Deity) and God has fulfilled the last desire I had in my mind. I had from before a strong desire to go to Bhubaneswar but considering the present state of my health I think it is advisable to drop that idea. I am not keeping well. (I am having) stomach trouble which is the precursor of Dysentery. Hence I am intending to return to Calcutta because I fear that if my condition gets beyond control after going there I shall be in great difficulty. There are no doctors there; besides I hear it would be colder there. I have got only Narayan to depend on and he is not so strong; it may be that he may have to face a critical situation. Foodstuff is not good either here or there. On top of that I am consuming considerable quantities of sand with rice and curry at each meal, and this is unavoidable for my household. But then, please do not be anxious. I shall perhaps start for Calcutta by Friday.

I have written out the Will and after signing in the presence of 4 respectable gentlemen I have obtained the signatures of the four of them on the document as witnesses. The work has been done exactly according to the advice of and to the manner in which such advice was given by, Abhay Babu, in that regard. I have nothing much to say to you. I know your intelligence, mind and heart and that is the reason why I have absolute faith in you alone and it is on you that I rely. You have seen the draft of the Will. Therein I have vested you along with all the rights to the Calcutta house. You shall be competent to enjoy and possess the same at your pleasure. Your mother, as long as she lives shall reside in my room and you shall pay her rupees five every month as pocket allowance. You shall pay off all the outstanding debts, etc., and preserve the house. Going through much difficulty indeed, you and I built the house. Please note that if you fail to preserve the same, my soul hereafter will suffer much torment. Please try your best to live jointly with your brothers peacefully and without having any quarrels or disputes with them. If Tinu and Khokan without causing any trouble want to, and can, live with you in joint mess peacefully and in accords, then please do not drive them out of the house but let them live (there). This is my earnest desire. I cannot surmise what attitude Moni will take. Hence as regards him you will yourself come to a decision hereafter after cool deliberations according to the circumstances then obtaining and do what you think proper. If after paying off the debts, etc., you can by God''s extreme grace preserve the house, then please see that my descendants may enjoy, possess, and live in the house. Let it not fall into hands of strangers. Tablet in the name of my father has not been bung up, please put it up as soon as possible. I have nothing further to say. May God keep you in good health and in happiness.

The first paragraph of the letter indicates that the Will was executed at the fag end of the testator''s stay at Puri where he was residing for 2 months. It further indicates that Adhar was not keeping well at the time giving a direct lie to the evidence of Debi Prosad that Adhar was having enviable health. It also indicates that at the time Adhar had only Narayan to depend on. Except this, the first paragraph is not very important.

The second paragraph on which Mr. Mitter strongly relies recites the execution of the Will in strict accordance with the directions and advice given by Abhoy Babu. It does not prove to my mind that the advice and directions were given to Adhar personally. It is quite consistent with the other case that the advice and directions were conveyed through Ajit. This paragraph is a very strong evidence of the fact that the testator did in fact execute the Will apparently at Puri when the testator was admittedly residing there.

The next paragraph throws a good deal of doubt in my mind that the Will was executed out of the free will of Adhar. I find a strong sentiment expressed by Adhar that the house should be preserved so that "my descendants may enjoy, possess and live in the house. Let it not fall into the hands of strangers". The testator''s descendants are not only Ajit and his branch but the other sons as well. In the earlier part he beseeches Ajit that the other sons may also live in the house. He knows the feelings between Ajit and Anil and pleads for Tinu and Khokan (Akhil and Arun) and also for Moni (Anil). The words of the testator are:

Please try to live jointly with your brothers peacefully without any quarrel or disputes with him. If Tinu and Khokan without causing any trouble want to, and can, live with you in joint mess peacefully and in accord, please do not drive them out of the house but let them live there. This is my earnest desire.

Then about Anil he left the matter to the discretion of Ajit.

I would not expect the above sentiments to be expressed by the testator if he wanted his descendants other than Ajit to be deprived of the house I read in this letter a great mental distress of the testator in leaving the house to one of his sons to the exclusion of others. Putting myself at the arm chair of the testator I think I can write the letter only if I had to bequeath the house to one of my sons to the exclusion of others not voluntarily but against my Will. I imagine that if at the time anybody had asked the testator to state in confidence why he was making this unnatural disposition of his property to one of his sons to the exclusion of the rest, the testator would have replied,- "I do not intend it, but I must". In other words, he was not doing it voluntarily out of his own free will. The letter is a very strong, if not conclusive, evidence of the fact that the testator did execute this Will in suit. But in my judgment it is no evidence of the fact that the testator executed the Will out of his own free volition. In my judgment it just indicates the reverse.

It may be contended that this letter proves that the testator thought that the only way of preserving the property for the family and to be enjoyed by the descendants of Adhar was to leave it exclusively to Ajit. Admittedly there were some liabilities outstanding at the time on account of the construction of the house. No evidence has been given by the pro pounder how much it was. Having regard to the fact that Ajit liquidated those liabilities subsequently before 1944 when Adhar made the additions in the draft Will, Ajit was in a position to state the amount of such liability. I apprehend that because the amount was not heavy, Ajit chose not to give the figure. I am satisfied in my mind that it was not at all heavy. There is again no evidence that it was beyond the capacity of the other sons to clear off this liability. If the amount was not heavy, the other sons in my judgment could have paid off the liability. In any event I am sure in my mind that Anil had the capacity and could have cleared the liability to save the house for the family. No doubt Adhar being old and thinking that he might not possibly be in a position to pay off the liability out of his pension, was oppressed by this feeling that the family might loose the house to liquidate this liability. It might be that Ajit played on this weakness and convinced the old man that Ajit was the only saviour of the family and as the price of saving the family and preserving the house for the family, Adhar must bequeath the house exclusively to him. I well believe that such improper pressure was put by Ajit on the old man and Adhar yielded to that pressure of Ajit and left the house to Ajit even though he did not intend that Ajit should enjoy the house to the total exclusion of the other sons of the testator.

Once the Will was executed and the deed was done, Adhar was incapable of revoking the Will. The testator knew what would be the reaction of revocation on Ajit and for reasons stated before Adhar had not the mental strength to over-ride Ajit''s will. I am certain that if Adhar had sufficient mental strength, he would have altered the Will and made a disposition in favour of at least Arun''s children after the death of Arun. He did not do it because he was powerless. Having regard to the fact that the testator was losing his mental strength with age, and having regard to the fact that Adhar was subdued by the aggressive personality of Ajit throughout the period, I do not accept the argument of Mr. Mitter that the very fact that the Will was not revoked for all the long years the testator lived after the date of the Will proves that the Will was executed out of the free will of the testator.

As noted before in the corrections to the draft made by Adhar in 1944 there is a clause indicating that the consideration of giving the Calcutta property to Ajit was the "very valuable help "I got from him in every respect during the construction of the "building and after". Mr. Ghose asked me to hold that Adhar was made to add this clause in the draft at the instance of Ajit and Ajit''s object was to create evidence. I agree with Mr. Ghose that the addition of this clause by Adhar in the draft is very strange and inexplicable. But the evidence before me is not enough to enable me to hold that this was done at the instance of Ajit to create evidence. Insertion of this clause in the draft, however, is clear evidence of the fact that the testator was persuaded to make the bequest in favour of Ajit on the consideration as indicated in that clause. Who else could have persuaded Adhar to do it except Ajit? I have no doubt that Ajit did persuade Adhar to make this bequest on that plea. As indicated before, the other sons also did help Adhar in the matter of construction. The only additional help that Ajit might have made is the contribution of about Rs. 5,000 for the construction of the house partly paid prior to the Will and partly paid in liquidation of Adhar''s outstanding liability. I am conscious that persuasion by a son to leave a legacy does not necessarily amount to undue influence in law. Such persuasion must amount to concern or such importunity as to take away the free will of the testator. Having regard to the fact that the testator was equally attached to each one of his sons, that he intended that each one of the children should enjoy the property after his death as evidenced by his letter, dated January 10, 1939, that Ajit contributed only a very small fraction of the money to construct the house, that the fund utilised by Adhar for the construction of the house was made out of the contribution by other sons as well and that the bequest amounts to a complete deprivation of the other sons in the right to enjoy the property, I have no hesitation in holding that the pressure used by Ajit to obtain the legacy was improper pressure and was such as to take away the free will of the testator.

Insertion of this clause in the draft Will in 1944 is no doubt wholly useless. Psychologists perhaps can give an explanation to this act of the testator. It may be that a frustrated old man who has been compelled to do an act against his will and which he was powerless to rectify, was trying to relieve himself by writing this clause.

It has been strongly urged by Mr. Mitter that in law I am bound to grant probate to this Will. The execution of the Will has been proved to my satisfaction. Evidence is enough to prove that the Will has been properly attested as required by law. On the evidence I am bound to hold that before the testator executed the Will he had full knowledge of its contents. Further on the evidence I am also bound to hold that the testator approved of its contents. I have therefore no option but to grant probate. I must say that Mr. Mitter''s argument is of great force and deserves very careful consideration. In this case I am fully satisfied that the testator did execute the Will, that he had knowledge of the contents before execution and that the Will was properly attested according to law. The only point in which my mind is not satisfied is that the testator did approve of the contents of the Will or the disposition made herein, in the sense that the Will was executed voluntarily without any pressure.

Testamentary Court is a Court of conscience, and before a probate can be granted the conscience of the Court must be satisfied that the instrument propounded is the last Will of a free and competent testator. The onus probandi in every case lies on the pro pounder and he must satisfy the Court that the instrument propounded is the last Will of a free and capable testator. This burden is easily discharged when the Will is not unnatural or unreasonable and there is no other suspicious circumstance in connection with the execution of the Will. Evidence of execution will be enough to discharge the onus. From the fact of execution the Court will presume the approval of the testator to the terms of the Will. In the case of a Will which is unnatural and unreasonable or there are other suspicious circumstances, the burden is not so easily discharged because the Court will not make any presumption in favour of such a Will and the pro pounder will have to lead positive evidence of approval. The mere proof of execution will not be enough, because the Court will not presume from the fact of execution the testator''s approval of the contents of the Will. The pro pounder will have to tender affirmative evidence of the fact that the testator out of his free will approved of the dispositions in the Will. If the Will is prepared by a solicitor and it is proved to the satisfaction of the Court that the testator gave instructions to the solicitor to prepare the Will, that would be evidence of approval. In the case of a holograph Will, when the Will is written out by the testator and it is established on evidence that he did it wholly by himself at his own initiative, the Court may accept it as evidence of approval. But the case would be different when the holograph Will is a mere copy of a draft and the draft is not of the testator but prepared by a solicitor and the instruction to prepare the draft has not been proved to have been given by the testator. The mere copying of the Will from the draft would not be sufficient evidence of approval, more specially when the testator is an old man living under the shadow of the aggressive personality of a young son who gets practically the whole benefit under the Will. I accept the evidence of Anil that the testator was under the general domination of his son Ajit and was unable to act contrary to his will. In the case of a Will executed under suspicious circumstances the duty of the pro pounder is to remove all suspicion and prove affirmatively that the instrument propounded is the Will of a free and competent testator. That suspicion'' is not removed in the instant case by proving that the testator executed a holograph Will. The holograph Will is an exact copy of a draft. The draft has been prepared, as indicated before, by the solicitor Abhoy Das under instruction from Ajit and the testator had nothing to do with it. Though the draft was prepared at Calcutta, it was not executed at Calcutta and no evidence has been given by the pro pounder as to why it was not so executed. I have no evidence that prior to execution, the testator approved of the draft. I am entitled to infer that Ajit who took initiative in the matter did not succeed in persuading the testator from executing the Will at Calcutta. The Will, however, is executed at Puri, at the Beach Hotel, which is the most unlikely place for the testator to execute the Will. In the hotel was living Debiprosad, an acquaintance if not a close friend of Ajit. The most likely inference is that Adhar was persuaded to go there either by Ajit or by Debiprosad. I am satisfied that there has been correspondence between Ajit and the testator at Puri. All such correspondence has been withheld from the Court by Ajit. These correspondences did refer to the Will and would most likely have shown at whose instance and under what circumstances the Will was executed at Beach Hotel, behind the back of Narayan, Adhar''s attendant who was a friend of the family. So also it is reasonable to infer that the diaries of Adhar of 1938 and 1939 would throw light on the above points. Those diaries have also been withheld from the Court. Lastly I find in the letter, dated January 10, 1939, evidence that the testator did desire that his other sons also should live in the house and should not be deprived of its user. Nature of the evidence of pressure as indicated before will appear from evidence which has been deliberately withheld from the Court by the pro pounder who is also the sole beneficiary. I am bound to draw adverse inference against the pro pounder and the pressure must be held to be "undue". I am not satisfied that the instrument sought to be propounded is the last Will of a free and competent testator. I find unmistakable evidence of "undue influence''''.

What the pro pounder must prove in all cases in which circumstances exist which excite the suspicion of the Court, has been laid down by Lindsay J. in the case of Tyrrell v. Painton (1894) p. 151. His Lordship observes at p. 157:

Wherever such circumstances exist and whatever their nature may be, it is for those who propound the Will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of this document, and only where this is done the onus is thrown on those who oppose the Will to prove fraud or undue influence or whatever else they may rely on to displace the case made for proving the Will.

Lord Lindsay applied the same rule and principle as was enunciated by Baron Parke in the case of Barry v. Butlin (1838) 2 Moo. P.C. 480 in respect to Wills wherein a party writes and prepares the Will under which he is benefitted. The rules are "The first, that the onus probandi "lies in every case upon the party propounding a Will and he "must satisfy the conscience of the Court that the instrument so "propounded is the last Will of a free and capable testator. The "second is that if a party writes or prepares a Will under which "he takes a benefit, that is a circumstance that ought generally "to rouse the suspicion of the Court and calls upon him to be "vigilant and jealous in examining the evidence in support of the "instrument, in favour of which he ought not to pronounce unless "the suspicion is removed, and it is judicially satisfied that the "paper propounded does express the true will of the deceased". These two authorities are generally accepted as correctly laying down the law on the point and have been extensively quoted and relied on by subsequent Judges both in England and India so as to be recognised as cases of impeachable authority. Mr. Gouri Mitter argued that though there may be circumstances to excite the suspicion of the Court, in this case the pro pounder has led convincing evidence to prove affirmatively that the testator "knew and approved" of the contents of this Will. I am satisfied that the pro pounder has led convincing evidence that at the time of execution the testator had knowledge of the contents of the Will. The pro pounder has, however, failed to lead such convincing evidence to satisfy me that the testator approved of the contents of the Will. As pointed out by Lindsay L.J., the proof of execution in the case of such a Will is not enough. Further independent evidence of not merely knowledge but approval must be given. Such evidence of approval of a free testator has not been given in this case to my satisfaction. The decision of the H. L. in the case of Boyse v. Rossborough (1856) 6 H.L.C. 49. has been cited and relied on by Mr. Mitter. In this case Lord Cranworth makes the following observation at p. 49:

One point, however, is beyond dispute and that is, that where 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 party who alleges it. Undue influence cannot be presumed.

It is argued that the burden of proving undue influence is on those who oppose the Will and I should not impose on the pro pounder the burden of proving the negative, i.e., absence of undue influence. I agree with Mr. Mitter that the onus of proving undue influence is not on the pro pounder but on those who oppose the Will. But this burden the party opposing the Will is called upon to discharge only after the pro pounder has proved not merely the execution of the Will but that the testator executed it freely out of his own volition. Only when the pro pounder has done this that the onus is thrown on those who oppose the Will to prove undue influence. In the instant case the pro pounder has failed to discharge the initial onus cast upon him to prove that the testator approved of the Will out of his free volition, hence the Defendant is not called upon to prove undue influence.

Assuming I am wrong and the evidence is held to be sufficient to discharge the initial onus cast upon the pro pounder by law, has the Defendant succeeded in proving that the Will is vitiated by undue influence? The case of undue influence has been made in paras. 5 and 8 of the affidavit of Anil filed in support of the caveat:

Paragraph 5. The execution of the said Will was obtained by fraud and undue influence of the pro pounder. The pro pounder took advantage of his boisterous, troublesome and criminal habits and of the weak temperament of the deceased, induced him and/or prevailed upon him to make the said Will. The influence of the pro pounder over the testator was so complete that he was not a free agent and the said alleged Will was not the offspring of his own volition, but was obtained by the coercion of the pro pounder.

Paragraph 8. The Will is unreasonable, unnatural and improper. ''The testator had equal affection for all his sons and there could be no reason as to why the testator should choose the pro pounder to be the sole beneficiary under the alleged Will knowing him to be boisterous, troublesome and of criminal habits. The said Will was brought about by the machination and instrumentality of the pro pounder who kept the deceased in his clutches and under his control and domination.

A grievance has been made that sufficient particulars of coercion has not been given. I note, however, that no particulars have been asked for of the allegations of coercion made in the said paragraph. I will, therefore, not be justified in preventing the Defendants from making out a case of undue influence and coercion. Further, in the peculiar circumstances of this case, at the time when the affidavit in support of the caveat was filed, it was not possible for the caveators to give particulars of coercion before the pro pounder tendered evidence in support of the Will.

I accept the argument of Mr. Mitter that "undue influence" that vitiates a transfer inter vivos is different from "undue "influence" that vitiates a Will. Natural influence exerted by one who possesses it to obtain a benefit for himself may amount to undue influence inter vivos, so that gifts and transfers inter vivos between certain parties would be set aside unless the party benefitted can show affirmatively that the other party could have formed a free and unfettered judgment in the matter. But such natural influence may be lawfully exercised to obtain a Will or a legacy. As observed by Lord Penzance in the case of Parfitt v. Jjawless L. R. (1872) P.& D. 462, 469-70.

Undue influence cannot be presumed. But in truth the cases in equity apply to a wholly different state of things. In the first place, in those cases of gifts or contracts inter vivos there is a transaction in which the person benefitted at least takes part, whether he unduly urges his influence or not; and in callng upon him to explain the part he took, and the circumstances that brought about the gift or obligation, the Court is plainly requiring of him an explanation within his knowledge. But in the case of a legacy under a Will, the legatee may have, and in point of fact generally has, no part in or even knowledge of the act; and to cast upon him, on the bare proof of the legacy and his relation to the testator, the burden of showing how the thing came about, and under what influence or with what motives the legacy was made, or what advice the testator had, professional or otherwise, would be to cast a duty on him which is many, if not most cases, he could not possibly discharge. A more material distinction is this: the influence which is undue in the cases of gifts inter vivos is very different from that which is required to set aside a Will. In the case of gifts or other transactions inter vivos it is considered by the Courts of Equity that the natural influence which such relations as those in question involve, exerted by those who possess it to obtain a benefit for themselves, is an undue influence. Gifts or contracts brought about by it are, therefore, set aside unless the party benefited by it can show affirmatively that the other party to the transaction was placed "in such a position as would enable him to form an absolutely free and unfettered judgment."

The law regarding Wills is very different from this. The natural influence of the parent or guardian over the child, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a Will or legacy, so long as the testator thoroughly understands what he is doing, and is a free agent. There is nothing illegal in the parent or husband pressing his claims on a child or wife, and obtaining a recognition of those claims in a legacy, provided that, that persuation stop short of coercion, and that the volition of the testator, though biassed and impressed by the relation in which he stands to the legatee, is not overborne and subjected to the domination of another.

From the passage set out above it is clear that the reason why no presumption of undue influence in the case of a bequest in favour of a certain relation in a Will can be made is first that the legatee may have nothing to do with the bequest and second that the legatee is entitled in law to ask for a bequest and press his claim though such persuasion must fail short of coercion. The permissible importunities must however not amount to domination of the free volition of the testator. The law as I understand, therefore, is that in the case of an unnatural legacy the Court will not start with a presumption of undue influence against the donee under a Will which the Court as a Court of Enquiry would have done had it been a case of a donee under a gift or transfer for inadequate consideration. But while the Court in such circumstances will not start with a presumption against the legatee, certain facts may be admitted or proved which may lead the Court to make the presumption. For instance, the legatee may be proved to be greatly instrumental in making the Will. Secondly, it may be proved that the legacy was only for a consideration and not for natural love and affection. If, for instance, the testator clearly indicates that though he has equal affection for his sons, he leaves a legacy of his entire estate valued at Rs. 50,000 to one of his sons in consideration of this son having paid him Rs. 5,000, the transaction is unconscionable and if the Court is satisfied that the son benefitted had procured the Will, the presumption of undue influence must be made by the Court. In such a case the reasoning given by Lord Penzance for not applying the rules of equity to a testamentary disposition does not hold good. In my judgment the Court is entitled in such a case to make a presumption of undue influence. To put the same thing differently, the conscience of the Court will not be satisfied unless the suspicions raised in the mind of the Court from the suspicious nature of the transaction is removed by positive proof that the testator made the bequest out of his free volition and without any influence from the legatee who was responsible for the Will. In the instant case I find first that the pro pounder who is the sole executor and practically the sole legatee is greatly instrumental in getting the Will executed by the testator. Secondly, I find that the legacy of the Calcutta house has been given on certain considerations which is not natural love and affection but payment of only a very small fraction towards the construction of the house by Ajit. I hold that the other sons also did help Adhar in the construction of the house and the house was partly built by moneys contributed by other sons as well to their father, though they did not specifically make any payment to their father for the construction of the house, Ajit no doubt paid a sum of about Rs. 5,000 on account of the house. Having regard to this fact the gift in the Will to Ajit of the entire house valued at about Rs. 40.000 to the exclusion of the other sons is bound to raise a presumption of undue influence in the circumstances of the present case. It is for Ajit to rebut this presumption which he has failed. Again, to put the same point differently, the suspicion aroused in the mind of the Court, Ajit has failed to remove by leading satisfactory evidence as to why this legacy was made to him to the exclusion of his other brothers.

Apart from presumpton, there is enough evidence to enable me to hold that Ajit exercised undue influence on Adhar to obtain this Will. The manner how it was done has been discussed before. In my judgment the facts proved are only consistent with the plea of undue influence and not with any other hypothesis. Having regard to my findings, I am bound to pronounce against the Will. The suit is, therefore, dismissed. As regards costs, I will make a departure from the usual rule. I will not allow costs to any party out of the estate. The only estate is the Calcutta house and the result of such an order would be the sale of the house. Having regard to the passionate desire of the testator that the house should not be sold, I will not make an order for costs in this testamentary proceeding which will result in such sale. Nor do I feel inclined to compel Ajit to pay costs to his elder brothers, for he is after all the youngest brother.

I, therefore, direct that each party do bear and pay his own costs.

I certify for two Counsel.

Solicitor for the Petitioner-R. Majumdar.

Solicitor for Respondent-S.C. Mitter.

Section A.M.