CHANCHAL KUMAR DAS Vs. PASUPATI NATH DAS

JUDGEMENT

(1.) Out of four principal issues involved in the judgment under appeal, three were decided in favour of the propounder of the Will. The Will was found to be (1) duly executed and attested; (2) and genuine; (3) the caveators failed to substantiate that (b) the testatrix at the time of execution of the Will suffered from in senile dimentia. So far issues No. 3(a) and 4 are concerned, it was found that the Will being the product of undue influence exercised by Harendra Nath Das and the execution of the Will being surrounded by suspicious circumstances, the propounder failed to satisfy the conscience of the Court that the Will was the produce of the testatrix's own will and volition and not made under the influence of the propounder. Against this decision the propounder has preferred this present appeal. No cross-objection or cross-appeal has been filed by the caveator. In this context, the Court has to find out whether the learned Single Judge was right in holding that the Will was executed under undue influence exercised by Harendra Nath Das (Harendra Nath). It may be noted that the issue No. 3(a) was whether the testatrix Shyama Sundar Dassi had testamentary capacity to execute the Will. From the evidence it appears that she had full testamentary capacity to execute the Will. Therefore, this issue ought to have been held in favour of the propounder. The only question that stares on the face of the propounder is that whether such testamentary capacity was exercised under the undue influence of Harendra Nath. The scope of the appeal is confined only to that extent. Both the learned Counsel had argued the case elaborately for days together and had drawn our attention to the various materials available on record to support their respective contention. We shall be dealing with the relevant materials as hereafter in the light of the discussion on the question and the principles since established. The question:

(2.) The question that is involved is interesting in nature. Inasmuch as when all the issues were found in favour of the propounder, only the suspicious circumstances that surrounded the execution of the Will is required to be probed and found out as to what extent the same would invalidate the Will and defeat the case of the propounder. In order to ascertain the same, before we look into the materials, we may discuss the settled principles of law operating in the field. The validity of the Will is to be tested on the anvil of the principles enunciated through different judgments rendered by the different Courts including the Privy Council and Supreme Court and the Courts in England and India. The principles followed both in England and India are almost identical. Propounding a Will: The principle :

(3.) Under section 59 of the Indian Succession Act, 1925 Explanation 4 requires that the state of mind of the person making the Will shall be such that he must know what he is doing and shall be free from any intoxication, illness or such other cause that prevents him knowing what he is doing. Section 61 in Illustrations (vii) and (viii) explain the exceptions to the importunity, so far as relevant for our present purpose, as that takes away the free agency of the testator caused by fraud or coercion rendering the making of the Will void. This fraud, coercion or such importunities are grounds attracting Explanation 4 of section 59 since elaborated in section 61. Inducement or influence will not render the Will void when the Will is executed by the testator in the free exercise of his judgment and volition. Similarly, attention and flattery persuading the testator to make the Will will not invalidate the making of the Will if executed in free will and volition. These propositions have posed many a difficulties before the Courts by reason of different kind of facts coming before it. On this score the law as developed into the settled proposition, may be found to be followed in various decisions.