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TMI Blog1954 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 10 per mensem should be paid to one or the other of two hospitals named, and that subject to the legacies aforesaid, the first respondent should take the estate, perform the sraddha, and pay one-sixth of the expenses for the worship of the deity installed in the ancestral house. 2. The first respondent who was the sole executor under the will, applied in due course for probate thereof. The appellant entered caveat, and thereupon, the application was registered as a suit. He then filed a written statement, and on that, the following issues were framed : (1) Was the Will in question lawfully and validly executed and attested ? (2) Had the testator testamentary capacity at the time of the execution of the will ? (3) Was the Will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta ? 3. 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. 4. The first respondent took the matter in appeal to the High Court and that was heard by G. N. Das and S. C. Lahiri, JJ. Before them, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and did his best to stop it but without success. The correspondence that followed between the appellant and his father during this period clearly shows that the father felt very sore over this alliance, and wrote that it could not pain him even if his son died. 7. With this background, we may turn to the will. The relevant recitals therein are as follows : My younger son Sri. Naresh Charan Das Gupta is behaving badly with me and without my knowledge and consent he has married a girl of a different caste and she has given birth to two female children and one male child. In these circumstances my said son Sri Naresh Charan Das Gupta and his son Sreeman Arun Gupta and the two daughters or any other son or daughter who may be born to him, will not be entitled to perform my sradh or to offer me Pindas. For all these reasons I deprive my second son Sri. Naresh Charan and his son Sreeman Arun Gupta and his two daughters and any other sons or daughters who may be born to him as well as Naresh's wife Sreemati Santi of inheritance from me and from all my movable and immovable properties, ancestral as well as self-acquired. They shall not get any share or interest or possession in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, and that the change in the course of the one had no effect on the direction of the other. 10. The testator, it is clear from the correspondence, was a man of strong will, determined and unshakable in his resolutions. He wrote of himself in Ex. C(34) that I am one-third conservative, one-third liberal and one-third autocratic. He was very solicitous about the family prestige and reputation, and felt deeply hurt when his son entered into a marriage which was viewed by his community with disfavour. In Ex. 6(c) he wrote, You broke our hearts for a woman who has no right to be in my house . And as late as 25-12-1941 he wrote to the appellant that if his wife and children came to live with him they must prepare themselves to meet uncalled for taunts and unpleasant inquiries which may be made by our near and distant village relations in our society who will come to see us . (Vide Exhibit C(37)). There cannot, therefore, be any doubt that the testator was all along smarting under a sense of social humiliation by reason of the inter-caste marriage, and that the recitals in the will were manifestations of a sore in his heart which had remained unhealed to the last. 11. It was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as against the first respondent, and wrote to him that in spite of the will the appellant should have his share as early as possible in order to avoid further complication , though it may be noted that they insisted on their rights under the will. Stripped of all its embellishments, the evidence of Indira, if true, comes only to this that the first respondent told his father that he could not live under the same roof with his brother, and that in view of that attitude, the testator gave no share to the appellant in the house. We are unable to see any undue influence in this. The first respondent was entitled to put forward his views in the matter, and so long as the ultimate decision lay with the testator and his mental capacity was unimpaired, there can be no question of undue influence. 13. It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as undue . It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion - it has often been observed that undue influenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P.Ws. 1 and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence of P.W. 1. The document was presented for registration by the testator, and 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 cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce his rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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