Paresh Charan Das Gupta vs Naresh Charan Das Gupta

Das, J.—This is an appeal by the propounder against a decision of Mr. E.P. Mukherji, third Court of the Additional District Judge, Alipore, dated January 20, 1949, refusing his application for the grant of probate of the will of his father Bhabesh Charan Das alias Das Gupta. The will is dated November 28, 1943, and was registered on November 30, 1943. The testator died on October 27, 1944. The application for the grant of probate was made by the Appellant Paresh Charan Das Gupta, the eldest son of the deceased testator and the executor named in the will. In the application for the grant of probate the propounder mentioned the names of his younger brother Naresh Charan Das Gupta and his sister Srimati Indira Debi as the near relations of the deceased. The application was supported by an affidavit of Kali Kinkar De, one of the attesting witnesses to the will. The application was filed on July 16, 1946, and was registered as L.A. (Act XXXIX of 1925) Case No. 77. Thereafter, special and general citations were issued. On November 22, 1946, the Respondent Naresh Charan Das Gupta filed an objection inter alia on the ground that the will was not duly executed or attested, that the will was not intended to be operative as a will, that the testator had no testamentary capacity, that taking advantage of the absence of the objector the Petitioner by illegal means and untrue suggestions brought the testator under his control and, while executing the will, the testator was dominated by the undue influence exercised on him by the propounder Paresh Charan Das Gupta and the testator could not exercise his own free discretion and it was further alleged that the Applicant had been suggesting to the testator for some time before the execution of the will various untrue allegations against the opposite party and his wife and suggested that a show of a will was necessary to put a check on the opposite party. Thereafter, the application was registered as a suit on November 25, 1946. On February 12, 1947, the objector filed a written statement on the same allegations as were made by him in his petition of objection filed on November 22, 1946. On March 3, 1947, two issues were framed for trial (i) Was the will in question lawfully executed and attested? (ii) Had the testator testamentary capacity at the time of the execution of the will? Later on, on December 20, 1948, another issue, being issue No. 3, was raised. The issue runs as follows Was the will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta?

By a judgment dated January 20, 1949, the Additional District Judge, Third Court, Alipore, found issue Nos. 1 and 2 in favour of the propounder and issue No. 3 in favour of the objector. In the result, probate was refused and the suit dismissed with costs. It is against this decision that the propounder has preferred this appeal.

Mr. Chakravarti, appearing for the Appellant, has urged that his client was prejudiced by the late framing of issue No. 3. He has also contested the finding of the Additional District Judge on issue No. 3.

Dr. Sen Gupta, appearing for the Respondent objector, has disputed the above contention and has further contended that the decision of the court below on issue No. 1 was erroneous. Dr. Sen Gupta, however, did not contest the finding of the Additional District Judge on issue No. 2, namely, the testamentary capacity of the testator.

I shall deal with the first contention of Mr. Chakravarti that his client was prejudiced by the late framing of issue No. 3. It was not disputed before us that issue No. 3 properly arose on the pleadings of the parties. The question that was argued was whether the Appellant sustained any prejudice by reason of an issue being framed at a late stage of the trial. The petition for probate was filed on July 17, 1946, The petition of objection was filed on November 22, 1946. The application was registered as a suit on November 25, 1946. Thereafter, on February 12, 1947, a written statement was filed on behalf of the objector. Out of the three issues, issues Nos. (i) and (ii) were framed on March 3, 1947, as already stated. On May 20, 1947, an application was made for examination of Indira Debi, sister of the Appellant and Respondent No. 1 objector. The prayer was granted and a writ was issued on May 24, 1947. Indira Debi was examined on commission thereafter and the commissioner''s report was submitted to the court on September 12, 1947. On January 15, 1948, the suit was transferred to the Third Court of the Additional District Judge, Alipore, and the case was opened on that date and the attesting witnesses, Jatindra Nath Sasu and Kali Kinkar De, were examined as P.Ws. 1 and 2. Balai Charan Nath and Ashutosh Mukherji, P.Ws. 3 and 4, were, examined and Exts. 1-1D and 2-2D were marked for the Plaintiff and Ext. A for the Defendant. On January 22, 1948, the case was resumed and Debendra Nath Mukherji, P.W. 5, Kalipada Sen Gupta, P.W. 6 and Haripada Sen Gupta, P.W. 7, were examined on behalf of the Plaintiff and cross-examined by the Defendant. On February 19, 1948, the Plaintiff made an application for issue of summons on one Ullas Chandra Ghosh. The court directed the issue of summons at the risk of the propounder. The case was not taken up till December 20, 1948. In the meantime the Additional District Judge had been transferred and Mr. K.P. Mukherji had taken over charge of the Third Court. When the case was opened on December 20, 1948, the Additional District Judge recorded the following order:

After the case is opened I find that it will be necessary to frame a further issue in addition to two issues framed by order No. II, dated March 3, 1947. So I frame issue No. 3 as follows : Issue No. 3 : Was the will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta.

On the same day, P.W. 8 Ullas Chandra Ghosh was examined and thereafter P.W. 9 Paresh Charan Das, the Propounder, was examined and cross-examined. The trial went on as usual. The Defendant''s witnesses were thereafter examined and cross-examined and evidence was closed on December 23, 1948. Arguments were heard on January 10, 1949 and the Additional District Judge, as I have said already, delivered his judgment on January 20, 1949.

From the facts stated above it appears that issue No. 3 was framed after evidence of Indira Debi was taken on commission and evidence of P.Ws. 1 to 7 was taken in court. Indira deposed in support of the objector''s plea of pressure. Indira was cross-examined on her evidence. The Additional District Judge has found in favour of the objector mainly relying on her evidence taken on commission. As-1 have said already, P.Ws. 1 to 7 were, examined before issue No. 3 as framed. After the issue was framed, it appears that no application was filed by the objector on whom the burden lay of proving issue No. 3 for an opportunity of recalling P.Ws. 1 to 7 or to examine Indira further on this issue, nor did the propounder make such an application. No. application was also made by either of the parties for calling, further evidence on this issue. The point was argued before the court and at that time no objection was raised by any of the parties-that any ''prejudice had been caused to any of them by reason of an additional'' issue being framed at a late stage of the trial. When the case was opened in this Court by Mr. Chakravarti for the Appellant and Mr. Chakravarti submitted his first point,-I enquired of Dr. Sen Gupta, learned advocate for the Respondent objector, whether his client wanted to adduce any additional evidence on issue No. 3. Dr. Sen Gupta stated that his client did not want to adduce any further evidence and submitted that the issue properly arose on the pleadings of the parties and the parties have led all available evidence on that point. At the close of the arguments in this. Court I again enquired of the learned advocates on both sides-whether it was necessary for either of them to adduce further evidence. Dr. Sen Gupta reiterated his statement that his client did not want to lead additional evidence. Mr. Chakravarti for the Appellant submitted that as Dr. Sen Gupta''s client would not lead any evidence his client would not adduce any evidence on this point.

It is fairly clear from the pleadings of the parties and the evidence recorded, that the relevant evidence had been given although no express issue had been raised at the proper stage of the trial. The parties went to trial knowing full well the real issue between them. The point was debated in the court below and the court gave a decision on the point. In these circumstances, the mere omission to frame issue No. 3 at an earlier stage of the case, was a mere irregularity and did not prejudice the parties and did not affect the decision of the case on the merits. The first contention raised by Mr. Chakravarti must therefore be overruled.

The next contention raised by Mr. Chakravarti related to the finding of the Additional, District. Judge on. Issue No. 3, Mr. Chakravarti contended that the evidence on record did not justify the finding in favour of the objector on this, point. I shall shortly advert to the line of reasoning adopted by the Additional District Judge in-finding against the, Appellant on issue No. 3. The Additional District Judge starts the discussion; by stating rightly, that the onus lay on the objector to prove the issue. The Additional District Judge then proceeds to hold that there was an attempt on the part of the testator to prevent a marriage between the objector and Santimoyee, that this marriage which was held in spite of the protests, of the propounder caused considerable mortification so far as the testator was concerned. The. Additional District Judge. then refers, to certain correspondence which passed between the testator and the objector'' and the objector''s wife and children. The Additional District Judge then refers to the fact that the propounder has not adduced any evidence to show that the testator cherished ill-feeling towards the objector. He refers to the terms of the will and observes that the will was not consistent with the letters and the evidence of the Defendant''s witnesses. The Additional District Judge then points out that the above-facts raise a suspicion. This suspicion, according., to the Additional District Judge, is deepened by certain circumstances to which he refers, namely, that the testator lost his wife in 1929 and that the testator was surrounded in his residence at No. F50, Southern Park, by the profounder father in-law and brothers-in-law and that there was ample opportunity for the propounder exercising undue influence on the testator. The Additional District Judge rightly points out that the above is not sufficient to pronounce against the propounder on issue No. 3 and that proof was ''necessary'' that in point of fact influence was exercised by the propounder on the testator. The Additional District Judge then refers to the evidence of Indira taken on commission and then, says-

I totally accept the evidence of Indira arid relying upon that evidence I hold that the will was induced by undue influence exercised by Paresh.

He then refers to two facts, namely, that benefit under the will was accepted by the objector and that demands were made-by-Indira and her husband Amiya Bhusan for possession of the five rooms be quested, to Indira under the will.-In the result as I have already stated, he found issue No. 3 in favour of the objector and refused to grant probate.

Before I deal ,with the finding of the Additional District Judge, it will be profitable at this stage to state the. Statutory provision on this point. This is contained in Section 61 of the Indian Succession Act, XXXIX of 1925, which runs as follows:

A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testor is void.

It may be pointed out that this section corresponds to Section 48 of Act X of 1865. In the case of Motibai Hormusjee Kango v. Jamsetjee Hormusjee Kanga (1923) 29 C.W.N. 45 P.C., it was observed that Sections 46 and 48 of the Indian Successions Act of 1865 practically embody the principles of English law on the subject. Mr. Chakravarti for the Appellant has referred us to some of the English decisions on this point, and, in particular, to the decision of the House of Lords in the case of Boyse v. Ross borough (1857) 6 H.L. Cas. Lah. 7, where Lord Cranworth stated what undue influence means in the legal sense of the word. Dr. Sen Gupta, on the other hand, referred us to the decision in the case of Hall v. Hall (1968) L.R. 1 P&D. 481. His contention was that the facts of this case attracted the observations made by Sir J.P. Wilde in his charge to the jury in that case which runs as follows:

To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like,-these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the Mopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet or of escaping from distress of mind or social discomfort-these, if carried to a degree in which the free play of the testator''s judgment, discretion or wishes, is overborne will constitute undue influence though no force is either used or threatened.

In my opinion, the test is correctly stated in the case of Wingrove v. Wingrove (1885) 11 P&D. 181, where it is stated that unless the testator is in such a condition that if he could speak his wishes to the last he would say, "this is not my wish, but I must do it". In other words, we have to consider whether on the evidence taken as a whole the will that was executed by the testator was an expression of his own desire or the embodiment of somebody else''s. Bearing the above principle, in mind, we have to consider the effect of the evidence which was given at the trial. It is well-settled that the onus probandi lies on the person who propounds the will and the onus is in general discharged by proof of capacity and the fact of execution from which the knowledge and the assent of its contents by the testator will be assumed. See Barry v. Butlin (1838) 2 M.P.C. 480, but when the will is prepared and executed under circumstances which excite the suspicion of the court, the onus lies on the propounder to remove the suspicion and to prove affirmatively that the deceased knew and approved of the contents. Tyrrell v. Paihton (1894) P. 151. But once it is proved that the will has been executed, with due solemnity by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence rests upon the person who so alleges. That burden is not discharged by showing merely that the beneficiary had the power unduly to overbear the will of the testator, it must be shown that in the particular case the power has been exercised and that execution of the will was obtained thereby. Craig v. Lamonreaus (1920) A.C. 349. Mr. Chakravarti referred us to the following observations of Lord Robson in the case of Bur Singh v. Uttam Singh (1910) ILR 38 Cal. 355 : L.R. 38 IndAp 13.

So far as the charge of undue influence is concerned, all that is shown on the part of those attacking the Will is that there was motive and opportunity for the exercise of such influence by the Defendants, and that some of them benefited by the Will to the exclusion of other relatives of equal or nearer degree. Circumstances of this character excite suspicion and would certainly lead the court in the present case to scrutinise with special care the evidence of those who propounded the Will; but in order to set it aside there must be clear evidence that the undue influence was in fact exercised or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.

In the case of Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga (1923) 29 C.W.N. 45 P.C., to which I have already referred, their Lordships of the Judicial Committee quoted with approval the dictum of Lord Westbury in the case of Sreeman Chunder Dey v. Gopal Chunder Chuckerbutty (1866) 11 M.I.A. 28, that it was essential to take care that the decision of the court rests not upon suspicion but upon legal grounds established by legal testimony. The case of Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga (supra) was a case where the grant of probate of a will was in controversy.

The position, therefore, is that the objector must prove, not merely the fact that there was opportunity on the part of the propounder to exercise influence over the testator, but that such influence was in fact exercised on the particular occasion when the testator executed the will and that the will was the result of such influence. It is not sufficient merely to raise suspicion in the mind of the court but the above facts must be affirmatively proved by clear evidence to that effect. Before I come to the evidence of the witnesses and the correspondence between the parties I shall first set out the history of the family of the testator.

After dealing with the family history and discussing the evidence about the execution of the will, his Lordship went on:

It is not possible to fathom the reasons which prompted the testator in making the dispositions which he made. The will has been proved to have been duly executed. It was wholly written out by the testator. It bears, intrinsic. evidence of its having been read by the testator more than once. It bears corrections in the handwriting of the testator. The testator was in sound mind. It is not the province of this Court to try to discover whether the will could not have been made more consonant either with reason or justice. Such an attempt to recreate the kind of will. the testator ought to have made is a dangerous step for the probate court to take. The onus, as I have already pointed out, lay heavily on the objector to prove his allegation that the will was induced by undue influence. In my opinion, the entire evidence on record shows clearly that the objector has failed to discharge the burden that rested on him.

I, therefore, disagree with the view taken by the court below in its finding on issue No. 3 and I hold that the will cannot be set aside on the ground that it was induced by undue influence and pressure exerted by the propounder as suggested. The finding on issue No. 3 must, therefore, be set aside.

Dr. Sen Gupta has contended that the evidence of the two attesting witnesses Dr. Basu and Mr. Kali Kinkar De did. not prove due attestation, because their evidence does not show that each of them signed the will in the presence of the testator as required by Section 63(c) of the Indian Succession Act. The material portion of the deposition of P.W. 1, Jatindra Nath Basu, runs as follows:

I know Bhabesh Charan Das since 1930. He executed a will and I attested his signature. This is my signature on the will. Bhabesh Charan Das signed the will in my presence. Kali Kinkar De was another attesting witness to the will. The will is marked Ext. 1, signature Ext. 1A and witnesses'' signature Ext. 1B. I wrote the remark "Testator signed in my presence in the will".

The witness was not cross-examined on the question of attestation.

P.W. 2 Kali Kinkar De deposed as follows:

I know Bhabesh Das since 1926 till, his death. I attested his will; This is my signature Ext. 1(c). Bhabesh Das signed the will in my presence at every page. Dr. Basu was present there as witness.

This witness was also not cross-examined on the question of attestation. P.Ws. 2 and 3 are both respectable persons and their testimony must be accepted. In fact, the truth of the above statements was not challenged on behalf of the objector. The execution and attestation took place at Dr. Basu''s residence. The suggestion made in this Court is that the testator might have gone out of the room where the will was being executed and attested after signing the will and did not see. the attesting witnesses sign the will. This suggestion was not put to the attesting, witnesses. Both the witnesses say that they attested the will. It is unlikely that before the execution was complete the testator-would go put of the room. He had gone to Dr. Basu''s house for the express purpose of executing and attesting, a proper will.

It is quite true that these witnesses did not expressly state that they signed the will in the presence of the testator. There, is a general statement made by them that they attested the will. The question is whether their evidence is a sufficient compliance with the provisions of Section 63(c) of the Indian Succession Act. The question has been debated in some cases in this Court, to which Mr. Chakravarti drew pur attention. In the case of Siba Sundari Sen v. Hemangini (1899) 4 C.W.N. 204 at 207, it was pointed out that strict affirmative proof of due attestation is not absolutely necessary and that the court ought to make reasonable inferences. in the facts, of the particular case. In the case of Nitai Chand Saha Banikya. v. Nagani Dassya (1909) 10 C.L.J. 449. 501, all the attesting witnesses except one were dead. The attesting witness, who was alive, was examined in support of the will, but no question was put to this witness as to whether the witness signed in the presence of the testator. In repelling the contention against the due attestation of the will, Mookerjee J. observed:

The witnesses were all present in the assembly. The testatrix signed in their presence, and, so far as we can gather the witnesses must have put their signatures in that assembly. Under these circumstances., we think that this is a ease in which the presumption arises, in the absence of evidence to the contrary, that "the will was duly executed and attested.

In support of the observations Mookerjee J. placed reliance on the decision in the case of Lloyd v. Roberts (1858) 12 Moo. P.C. 158. In the later case of Brahmadat Tewari v. Chaudan Bibi (1914) 20 C.W.N. 192, there were thirteen attesting witnesses. Six were dead. Three were not examined. Two had turned hostile and two of the witnesses signed as attesting witnesses but one could not recollect if. he had seen the testator sign nor did he speak about any assurance that the testator had signed the will. At p. 194, Mookerjee J. made the following observation:

It is not necessary however that affirmative evidence should be forthcoming that, the testator did as a matter of fact see the attesting witnesses put their signatures or that the witnesses did actually see the testator sign the document. It is enough if the circumstances show that their relative position was such that they might have seen the execution and the attestation respectively or as Waldo J. said In re Trimnel (1865) 11 Jur. N.S. 248, the true test is, whether the testator might have seen, not whether he did see, the witnesses sign their names.

If, we bear the above principles, in mind, there is no escape from the conclusion that the attestation was duly made as required by law.

I hold, accordingly, that the requirements of Section 63(c) of the Indian Succession Act were complied with. This was the only defect suggested on behalf of the Respondents. I hold, therefore, that the will was duly executed and attested. The contention raised by Dr. Sen Gupta must also fail.

As the Appellant is the executor named in the will and is the principal beneficiary under the will and as the pecuniary legacies. are charged on the house at 50, South End Park, in my opinion, no security should be demanded from the propounder.

I, accordingly, hold that the probate of the will of the testator Bhabesh Charan Das alias Das Gupta, Ext. 1, be granted to the Appellant Paresh Charan Das Gupta the executor named in the will and I order accordingly.

The result, therefore, is that this appeal is allowed. The judgment and decree of the court below are set aside in so far as it refused probate of the will, Ext. 1. I direct that probate of the will of Bhabesh Charan Das alias Das Gupta do issue to the Appellant Paresh Charan Das Gupta.

In view of the facts and circumstances appearing on the record I direct that the parties will bear their costs in this Court and in the court below. The costs of the Appellant in this Court and in the court below will come out of the estate.

Lahiri J.

I agree.