RAMBALI PRASAD SINGH Vs. MTKISHORI KUER

JUDGEMENT

(1.) THIS is an appeal from the order of the District Judge refusing a grant of probate. One Kodai Singh died in the year 1897 leaving two widows. The senior widow Deoratan Kuer had no issue. The junior widow had issue by Kodai Singh-- three daughters --Gena who is a widow and issueless, Anar who is dead and Kishori who is the caveator. The deceased Anar married one Mun Prasad and by him had a son who is the applicant Rambali. The two ladies Deoratan and Uchanti widows of Kodai Singh, made a will which will of course operate only upon their separate stridhan property bequeathing the entire property to Rambali, the son of the deceased daughter of Uchanti. Later on, Deoratan died and the surviving widow Uchanti then purported to execute a further will by which she stated that having regard to the fact that her daughter Gena was a widow and issueless whereas Kishori the caveator was married and was living with her husband, she considered that Gena was entitled to 5 as. 4 pies share in the estate bequeathed by her and her co-widow and therefore she purported to give effect to this view of the matter and to give to Gena 5 annas 4 pies share of the property left by the co- widows, Rambali being named as the executor. The caveator Kishori raised no question of undue influence on either Uchanti or Deoratan in respect of the earlier joint will. The learned Judge however seems to have been under the impression that it was incumbent upon the person asking for probate of a will executed by a pardanashin lady to prove affirmatively that the will was executed under separate independent and disinterested advice. The evidence before him showed that the ladies had been advised by Man Prasad, the father of Rambali; but there is nothing in such evidence which would give rise to any inference that he exercised undue influence. It is not incumbent upon a person wishing to prove the will of a pardanashin lady of her own separate property to prove that the will has been executed under independent advice. The tendency seems to be for the Courts to place a pardanashin, lady under a condition of almost total disability and the mere fact that she took the advice, if she did take the advice of the father of the young man to whom she proposed to leave the property, is no evidence at all of undue influence. Indeed the learned District Judge's finding that the applicant's witnesses had deposed that the widows were of sound mind and in full possession of their faculties when they signed the will negatives the very suggestion of undue influence. Undue influence does not mean the exercise of advice by a close friend or relative. It means the domination of a weak mind by a stronger mind to an extent which causes the behaviour of the weaker person to assume an unnatural character. The bequest itself was not in the least unnatural in the circumstances. Rambali, the applicant, has very properly intimated through the learned Advocate appearing on his behalf that he wishes to give effect to the wishes of the ladies and in particular to the wish of Uchanti and voluntarily consents to a declaration that the lady Gena is under the will entitled to 5 annas 4 pies share which the later will of Uchanti purported to bequeath to her. I would therefore set aside the decision of the District Judge, direct the grant of letters of administration with the will annexed to the applicant and grant the declaration in the form to which the applicant consents. The caveator must pay the costs of this appeal and of the Court below. James, J.

(2.) I agree.