Sir Madhavan Nair.-

This is an appeal from the judgment and order of the High Court of Judicature at Nagpur dated 29th September 1941, which set aside an order of the Additional District Judge of Jubbulpore, dated 20th September 1939.

[2] The appeal arises out of an application made by respondent 1 for the grant of probate of a will (dated 3lst July 1938) executed by one Ganesh Prasad hereinafter referred to as the testator on 1st August 1938, in which he had been appointed as the executor

[3] The testator died on 4th August 1938, and respondent 1, as the executor, applied for probate of the will on 29th August 1939.

[4] The appellant Gomtibai is the widow of the testator. She filed a caveat under S. 284, cl. (4), Succession Act, 1925, on 15th September 1938. In her written statement she denied the testamentary capacity of the testator, alleged that he was "mentally and physically imbecile and infirm," and that the will had been executed under the undue influence of Maheshwarilal, the natural father of the testator, with the help of respondent 1. She added that the testator had no independent advice and even she was in the dark about it. Execution and attestation of the will, which she denied in the statement, are not now in contest.

[5] The legatees of the will who are the other respondents (respondents 3 to 6) supported the validity and execution of the will.

[6] Two questions arising for determination in the appeal are :

(1) Whether the testator executed the will "in his right mind, and with disposing mental capacity" (Issue 2);

(2) "Was Maheshwarilal in a position to dominate his will, and did he use his position to induce him to execute this will? " (Issue 3) i. e., whether or not the will was executed under the undue influence of Maheshwarilal.

[7] The Additional District Judge found both issues in favour of the appellant. He held that the testator did not possess the disposing mental capacity, and that undue influence was exercised in the preparation of the will. He accordingly refused probate.

[8] The High Court on appeal set aside that order of the Additional District Judge and admitted the will to probate.

[9] The principles of law applicable to the case not being in dispute, the decision of the case depends entirely on a consideration of the evidence which is mainly oral.

[10] The relationship of the testator and the legatees appears from the following genealogical table. (This table was prepared by the respondents and is more detailed than the one on the record.)

[11] The testator was the natural son of one Maheshwarilal; he was adopted in 1917 by Gangabai under the authority of her husband Kashiprasad, who died in 1915. The testator was then about 8 years old. After adoption he ceased to be a member of his natural family. Maheshwarilal was the brother of Gangabai, the adoptive mother. His other sons, grandsons and the widow (appellant) of the testator were the legatees under the will.

[12] The will was prepared by B. V. Shukla, pleader (applicant's witness 4). He also attested it. The other attestors are V. R. Sen, M.B., B.S. (applicant's witness 3), and S. Golchha, Advocate (applicant's witness 6).

[13] In the recital to the will, it is stated that the testator is not keeping good health, his health does not improve, and the trouble is increasing day by day and his health is becoming weaker. It is also stated that the will is executed for the protection and management of the property.

[14] The terms of the will are thus conveniently summarised in the respondents' case;

"Under the terms of the will Mt. Gomti Bai (the appellant) was to receive Rs. 50 per month for her maintenance, and the back portion of the parlour was to be given to her for residential purposes. Out of the remaining properties four annas (one-fourth) share was to be given to Sundarlal (respondent 2), one anna and four pie (one twelfth) share to Lakhanlal (since deceased). Badriprasad (respondent 5), Dwarkaprasad (respondent 6) each, and eight anna share (one-half