Judgement

VENKATARAMA AYYAR J. : This appeal arises out of an application filed by respondent 1 for probate of a will dated 28-11-1943 executed by one Bhabesh Charan Das Gupta. The testator died on 27-10-1944 leaving him surviving two sons, Paresh Charan Das (respondent 1), Naresh Charan Das (the appellant), and a daughter, Indira (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, for the period of his life; that his daughter should be entitled to a life estate in five specified rooms in the house to be enjoyed either personally by her and the members of the family, or by leasing them to others; that a legacy of Rs. 10 per mensem should be paid to one or the other of two hospitals named, and that subject to the legacies aforesaid, respondent 1 should take the estate perform the sraddha, and pay one-sixth of the expenses for the worship of the diety 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 ?"

The Additional District Judge of the 24 Parganas who tried the suit held in favour of respondent 1 on issues 1 and 2, but against him on issue 3, and in the result, probate was refused.

3. Respondent 1 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 did not contest the correctness of the finding of the Additional District Judge that the testator had testamentary capacity when he executed the will. The two contentions that were pressed by him were (1) that the will in question was executed by the testator under undue influence of respondent 1, and (2) that it was not validly attested, and was therefore invalid. On both the questions, the learned Judges held in favour of respondent 1, and accordingly allowed the appeal, and directed the grant of probate. Against this judgment, the caveator prefers this appeal, and contends that the findings of the Court below on both the points are erroneous.

4. The main question that arises for our decision is whether the will in question was executed under the undue influence of respondent 1. "When once it has been proved", observed Lord Cranworth in - Boyse v. Rossborough , (1857) 6 HLC 2 (A) "that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it". Vide also- Craig v. Lamoureux , AIR 1919 PC 132 (B). In the present case, it is not in dispute that the testator executed the will in question, and that he had the requisite mental capacity at that time. The burden, therefore, is on the appellant to establish that the will was the result of undue influence brought to bear on him by respondent 1.

5. The facts so far as they are material 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 maintaining the home. Naresh Charan studied up to I. A., but in 1920 discontinued his studies and got into emp