Edward Ezra v. The State of West Bengal

J.-This appeal anses out VENKATARAMA AYYAR of an application filed by probate of a will dated 28-11-1943 executed by one Bhabesh Charan Das Gupta. The testator died on two sons, Paresh him surviving 27-10-1944 Charan Das (the first respondent), Naresh Charan Das respondent leaving Naresh Charan Das Gupta v. Paresh Charan Das Gupta Venkatarama Ayyar ], ,_. ., ·, ... • S.C.R. SUPREME COURT REPORTS 1037 Indira (the appellant), and a daughter, (the second respondent), The estate consisted of a sixth share in some ancestral lands at Matta in the District of Dacca, and a house No. 50, South End Park, Calcutta, built by the testator on a site purchased by him. By his will, he directed that a legacy of Rs. 10 per mensem should be paid to his younger son, the appellant, the period of his life; that his daughter should in the entitled to a life estate in five specified rooms to be enjoyed her and the members of the others; that a legacy of Rs. 10 per mensem should be paid to one or the other of two hospitals ·named, that subject to the legacies aforesaid, tl1e first respon sraddha, dent should take the and pay one-sixth of the the worship of the deity installed in the ancestral house. The first respondent who was personally by family, or by leasing estate, perform expenses either application was under the will, applied in due course thereof. The appellant entered caveat, and filed a written statement, and on that, the issues were framed: (1) "Was the Will inquestion registered as a suit. He lawfully executor for probate thereupon, following validly executed and attested ? (2) Had testator testamentary capacity (3) Was the time of the execution of the Will? the Will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta?" The Additional District Judge of the 24-Parganas who tried the suit held in favour of the first respondent on issues 1 and 2, but against him on issue 3, and in the result, probate was refused. The first respondent took the matter in appeal the High Court, and that was heard by G. N. Das and S. C. Lahiri, JI. Before them, the appellant did not contest the correctness of the finding of the Addi testamen tional District Judge that the testator had tary capacity when he executed the will. The contentions that were pressed by him were (1) in question was . executed the will the . testator 1954 NQrtsh Charan Das Gupta v. Paresh Charan Das Gupta V enkatarama Ayyar J. 1038 SUPREME COllRT REPORTS [1955] learned attested, executed and was for our decision proved", observed Lord Cranworth (2) under undue influence of the first respondent, and therefore that it was not validly Judges invalid. On both the questions, accordingly held in favour of the first respondent, and allowed the appeal, and directed the grant of probate. Against this judgment, the caveator prefers peal, and contends findings of the Court below on both the points are erroneous. The main question that arises whether the will in question was executed under respondent. "When once undue influence of the first it has been Boyse v. Rossborough( ') "that a will has been executed by a person of competent under with due solemnities the burden of standing and apparently a free agent, proving that it was executed under undue influence party who alleges it". Vide also Craig v. on the it is not in dis In the present case, Lamoureux('·). in ques testator that the tion, and that he had capacity therefore, is on the appel at that time. The burden, result of lant to establish undue influence brought to bear on him by the respondent. The for this issue, may now be stated. The testator was a police officer and retired in 1927 as Deputy Superintendent of Police. Paresh Charan, the elder son, was married in 1925, and lived all along with his parents with his wife and children. Nirmala, the wife of the testator, died in 1929, and thereafter . it was the wife of Paresh Charan that was maintammg the home. Naresh Charan studied up to I.A., but in 1920 discontinued the workshop his studies and got into employment in salary ; and of Tata & Co., at Jamshedpur on a petty the evidence is practically In 1928 he married one living apart from the family. Shantimayi, who was a widow having some children to the Kayastha by her first husband. She belonged to the Baid caste, whereas Naresh Charan belonged caste. The testator was the will the requmte mental that the will was the t11ereafter he was they are material strongly opposed facts so far (1) [1857) 6 H.L.C. 2; IO E.R. 1192. (2) 1920 A.G. 349· ( y r954 N are sh Charan Das Gupta v. Paresh Charan Das Gupta Venkatarama Ayyar J. 'f - '< ·-. • 'S.C.R. SUPREME COURT REPORTS 1039 intercaste marriage, and did his without success. The correspondence between the appellant and his period clearly ·over this alliance, him even if his son died. and wrote that the father father to stop it but followed felt very sore it could not pain during With this background, we may The relevant recitals therein are as follows: turn to the will. In these "My younger son Sri Naresh Charan Das Gupta is behaving badly with me and without my knowledge .and consent he has married a girl of a different caste female children and and she has given birth to two circumstances my said son -one male child. Sri Naresh Charan Das Gupta and his son Sreeman Arnn Gupta and the two daughters or any other son -or daughter who may be born to him, will not be entitled to perform my sradh or to offer me Pindas. For all these reasons I deprive my second son Sri Naresh Charan and his son Sreeman Arnn Gupta and his two daughters and any other sons or daughters as Naresh's wife who may be born to him as well Sreemati Santi of inheritance from me and from all my movable ancestral as well as self-acquired. They shall not get any share in any of my aforesaid pro -or interest or possession perties". recitals accord with It is not disputed in the correspondence what the testator had expressed at the time of the marriage and for some years after. But it is argued that since then, more than a decade had passed before the will was executed, and affection of the that during this period the natural testator for his son had re-asserted that he had that when the forgiven and forgotten will was actually tracted did not correctly then mind of the testator. the past, and reflect the and immovable properties, executed, recitals itself, We have been taken through corres pondence that passed between the testator It shows appellant and the members of his family. that the testator was solicitous about the appellant, and was enquiring about his health and the welfare the entire 1954 Naresh Charan Das Gupta v. Paresh Charan Das Gupta V enkatarafna Ay••ar· J. 1040 SUPREME COURT REPORTS [ 1955]: recitals towards employment. appellant for some towards his children that he waso sending him on occasions medicines; and waso affectionately disposed latterly he had sending them presents of cloth; that the wife of the so far modified his attitude appellant as to invite her and her children to Calcutta; time at that he himself stayed with them appellant Jamshedpur and was giving advice It was on matters connected with his argued that there was thus a gradual change of heart and· on the part of the father towards . the the members of his family, that this change of atti will could not be reconciled with tude, and that they must have been inspired by the· first respondent. We are unable to agree. It is one thing for a father who feels that he has been wronged by a disobedient son to wish him well in life, and quite another thing to give him any of his properties. In the whole of the correspondence which has been read to us, there is nothing to suggest that he wanted the other the appellant to share in the estate. On the ap hand, there are indications pellant was in financial difficulties, sidered that he was under no sort of obligation to· come to his help. Vide Exs. 5(c) and C(l). It may be mentioned that after making the will oh 28-11-1943·. the appel the testator continued to correspond with lant and the members of his family precisely in the same terms as before. Vide Exs. B(2), C( 4) and A(lO) .. That shows tion and settlement of channels, and one had no effect on the direction of the other. in distinct in the conrse of the· that even when that the two cnrrents of the change properties testator natural flowed The testator, it is clear the correspondence,. was a man of strong will, determined and unshakabJe. in his resolutions. He wrote of himself in Ex. C(34) liberat that "I am one-third solicitous and one-third about the family prestige deeply hurt when his son entered into a marnage which was viewed by his community with disfavour. In Ex. 6( c) he wrote, "You broke our hearts for a woman who has no right to be in my house". And one-third reputation, autocratic". He was conservative, ., . ;. ..... Naresh Charan Das Gupta v. Paresh Charan· Das Gupta Venkatarama Ayyar J. S.C.R. SUPREME COURT REPORTS 1041 to any themselves to meet uncalled therefore, be any doubt that as late as 25-12-1941 he wrote to the appellant his wife and children came to live with him "they must prepare for taunts and unpleasant enquiries which may be made by our relations in our society who near and distant village will come to see us". (Vide Exhibit C(37) ). There the testator was cannot, humiliation all along smarting under a sense of social by reason of the inter-caste marriage, and recitals in the will were manifestations of a sore 111 his heart which had remained unhealed to the last. the dispositions It was also argued appellant had been will were unnatural in that altogether children practically disinherited and ignored. This by itself cannot lead inference of undue influence on the part of the first respondent. Having regard to the character of the his feelings in the matter it is not a matter for · sur prise that he should have cut ofl the appellant with a small legacy. net value of the assets as given in the probate tion is Rs. 23,865-10-9, and the other legacies charges are deducted, what was bequeathed first respondent cannot be said consider that time his salary was that at able. and that he had a number of Rs. 60 per mensem children, whereas the appellant is stated to have had a basic salary of Rs. 250 per mensem then. The first respondent, his wife and children have all along been dependants of the testator, whereas the appellant lived apart from him from 1920. And it is not unnatu ral for the testator so to order the distribution of his ex1stmg continuance of the estate as to secure state of affairs. The terms of the will, therefore, can not be relied on as intrinsic evidence of undue influ ence, as contended for by the appellant. It must also be mentioned It also appears to be very testator Then there is the evidence of Indira, the daughter of the testator, which was taken on commission. She deposed that son had were troubles in the house, objection to stay with the they live together, there will be social trouble regard- the elder younger one, "because the testator had told her - 1 \ ·• / 1954 N aresh Charan Das Gupta v. Yaresh Charan Das Gupta Venkatarama Ayyar J. 1042 SUPREME COURT REPORTS [19551 to tell that on that he repeatedly for discussions, but Indira also deposed that ing his daughter's marriage", and therefore wanted to make a will. She went on to add that the and sent father subsequently wanted to alter the will, for her generally excused herself, because she did not like to those occasions, intervene in the matter, and I want he told her, "At present this will stand, to modify it in future". first respondent and his wife used testator there was no change in the conduct of the appel in his habits lant, that he was extravagant and in taken away some arti curred debts, and that he had cles. We do not consider that it is safe to act on this Indira and evidence. It is clear from Exhibit 1 that her husband had taken sides with appellant against the first respondent, and wrote to him "should have his in spite of further share as early as possible in order to avoid complication", though it may be noted that 111- sisted on their rights under the will. Stripped of all its embellishments, the evidence true, respondent to this comes only live under the same his father that he could not of that atti roof with his brother, and that tude, influence the house. We are unable to see any undue put for in this. The first respondent was entitled to ward his views in the matter, and so long as the ulti and his mental mate decision lay with there can be no question of capacity was unimpaired, undue influence. the testator gave no share to the appellant the appellant the testator of Indira, in view the will before the testator It is elementary law that it is not every It is open to a person influence which is brought to bear on a testator that can be characterised as "undue". to persuade plead his case to make a disposition in his favour. And if the testator retains his mental capacity, coercion-it has often been element of fraud or observed that undue the last analysis be brought under one or the other of these two cate gories-the will cannot be attacked on the ground of influence may in there is y )... S.C.R. SUPREME COURT REPORTS 1043 undue influence. The law was Penzance in Hall. v. Hall(1): thus stated by Lord 1954 Naresh Charan: Das Gupta v. Paresh Charan Das Gupta Venkatarama Ay:iar J. ' ' - } • - - 7 ' - -i "But all unlawful. influences are not like,-these are all Persua sion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, legiti- future destitution, or mate and may be fairly pressed on a testator. On other hand, pressure of whatever character, whether acting on the fears or the h-0pes, if so exerted as to overpower the volition without convincing is a species of restraint under which no valid ment, Importunity or thr~ats , such as the will can be made. to resist, moral command testator has asserted and yielded the sake of peace and quiet, or of escaping from distress of mind or social to a degree in which the discomfort,-these, judgment, discretion, or free play of influence, wishes threatened. In a though no force word, a led, but not driven; and his the offspring of his own volition, and will must be Section 61 of the Indian Succession Act (Act XXXIX of 1925) enacts is overborne, will constitute undue the record of some one else's". if carried testator's is either used or testator may be the courage to for that, importunity as "A will or any part of a will, the making of which has been caused by fraud or coercion, or - by the free agency of the takes away testator, is void". (vii) Illustration is as follows: the section instructive, is very "A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of and persuasion, but in the free exercise of his judgment and volition, recommended bv B. the manner makes his will The will intercession and persuasion of B" . is not rendered invalid by intercession ..-:, (1) (1868) L. R. IP. & D. 481 & 482. 134 - 1954 J{arcsh Charan Das Gu.Ota v. Paresh Charan Das Gupta Venkatarama AyyarJ. 1044 SUPREME COURT REPORTS [1955] Even Indira, if we accept the evidence of testator himself who made all the facts, fall within this Illustration. case would, on that the testator was in full posses It is not disputed sion of his mental faculties. There is no proof that the first respondent did or said anything which would the free exercise by the testator of his have affected volition. On the other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P. W s. 1 and 2 is that if was the arrangements for its execution, and that it was actually executed at the residence of P.W. 1. The document was presented for registration by testator, and he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The evidence is clearly to establish that the will represents that it is not the the free volition of the testator, and result of undue influence by the first respondent or his herself relations. It should be mentioned sought the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its apprecia tion of the evidence, and we agree with its conclusion that the will is not open to question on the ground of undue influence. cumulative effect of to enforce his rights under that Indira -< I ( y • - - It was also argued for the appellant was no proof that the will was duly attested as required by section 63 of the Indian Succession Act, and that it should therefore be held to be void. P .W s. 1 and 2 are the two arrestors, and they stated in examina tion-in-chief that the testator signed the will in their They presence, and that they attested his signature. did not add that they signed the will in the presence of the testator. Now, the contention absence of such evidence it must be held that there was no due attestation. Both the Courts below have that in N ar-.sh Charan Das Gupta v. Paresh Cha an Das Gupta Venkatarama Ayyar J. :S.C.R. SUPREME COURT REPORTS 1045 and as took place there was due did not state in present the witnesses held against appellant on this contention. The 1earned Judges of the High Court were of the opinion that as the execution and attestation residence of P.W. 1, where the testa one sitting at the tor and the witnesses had assembled by appointment, they must all of them have been matter was finished, -were not -cross-examined on the question of attestation, it could properly be inferred that attestation. that be It cannot be laid down as a matter of law cause the witnesses examination-in ·chief that they signed the will in the presence of the It will depend testator, there was no due attestation. -0n the circumstances elicited in evidence whether attesting witnesses signed in the presence of the testa tor. This is a pure question of fact depending on appreciation of evidence. The finding of the Court on a below that the will was duly attested 1s based ·consideration of all the materials, be ac cepted. judgment of the that "the fact of due execu Additional District Judge tion and attestation of the will was not challenged on behalf of the caveator at the the hearing of the suit". This contention of the appellant must .also be rejected. Indeed, it is stated in the and must time of --t ' - In the result, the decision of the High Court is confirmed, and this appeal 1s dismissed, but m -circumstances, without costs. Appeal dismissed. BUDHAN CHOUDHRY AND OTHERS v. THE STATE OF BIHAR. 1954 December ~ • [ME.HAR CHAND MAHAJAN C. J., MuKHERJEA, S. R. DAs, V1VIAN BosE, BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.] Constitution of India, Al'ticle 14-Code of Criminal Procedure ~ (Act V of 1898), section 30-Whether ultra vires the Constitution forbidden-Test of per Article 14-Reasonable classification-Not missible classification-Necessary conditions-Constitution-Whether