The burden of establishing undue influence in the making of a will lies on the person who puts forward the contention, and the propounder of the will need not prove the negative that there was no undue influence exercised upon the testator.

Headnote:
COURT FEES ACT - PROBATE - VALUATION OF PROPERTY - COURT FEES - UNDUE INFLUENCE - BURDEN OF PROOF - TESTAMENTARY CAPACITY - EXECUTION OF WILL - AMENDMENT OF PETITION FOR PROBATE.
Fact of the Case:

The appellant challenged the grant of probate to the petitioners on the grounds of improper petition for probate, non-payment of proper court fees, and undue influence in obtaining the will.
Finding of the Court:

The court held that the petitioners should have shown the disputed property in the first schedule to their petition for probate, paid court fees on its valuation, and that the mere right of action cannot be property which need be shown in the petition.
Issues: 1. Whether the petition for probate was in proper form and proper court fees were paid? 2. Whether the will was obtained by undue influence?
Ratio Decidendi: 1. The Court Fees Act, Section 19-I, requires the filing of a valuation of the property in the form set forth in the third schedule and payment of the court fee mentioned in No. 11 of the first schedule before granting probate. 2. The third schedule provides for the valuation of moveable and immoveable property, including debts and other property not comprised under the foregoing heads. 3. The property in dispute, being the subject matter of a suit, should have been shown in Annexture A of the petition and valued in accordance with the mode laid down in the third schedule. 4. A mere right of action cannot be property which need be shown in Annexture A. 5. The burden of establishing undue influence lies on the person who puts forward the contention. 6. The propounder of the will need not prove the negative that there was no undue influence exercised upon the testator. 7. The court must look at the circumstances surrounding the making of the will to determine if there is any suspicion of undue influence. 8. The conscience of the court need not always be satisfied before granting probate. 9. The will itself may contain internal evidence of resentment felt by the testator against the conduct of the beneficiary, which may dispel any suspicion of undue influence.
Final Decision: The appeal was dismissed, and the decree and order passed by the learned Judge were confirmed. The appellant was ordered to pay the costs of the appeal. The petitioners were permitted to amend the petition for probate to bring it into conformity with the form contained in the third schedule to the Court Fees Act.

Judgment

1. This is an appeal against a Judgment of Desai J. by which he ordered probate to issue to the petitioners of a will of one Louisa Catherine Rodricks. The will was opposed by the appellant substantially on two grounds. One was that the petition for probate was not in We proper form and that proper court-fees had not been paid, and the other ground was that the will had been obtained by undue influence. With regard to the first ground the position is this.

In the petition for probate in Schedule I the two petitioners have shown the value of moveable properties as Rs. 850/-. That is the only property which has been shown in this Schedule. Then they have annexed Schedule III and in that Schedule they have shown the value of immoveable property at Rs. 35,000/-, and with regard to this Schedule there is an averment in para 9 of the affidavit, in support of the petition that this property is the subject-matter of the suit filed by the deceased testatrix in which suit she claimed this property as belonging to her.

Admittedly, no court-fees have been paid on the value of this immoveable Property viz., Rs. 35,000/- and the direction given by the learned Judge with regard to this property was that the petitioners should file a statement in the Court showing the result of the suit and the petitioners should undertake to pay the probate duty if the suit was determined in their favour, and Mr. Gauba on behalf of the appellant has contended that the order passed by the learned Judge is not justified by the provisions of the Court-fees Act and that the insertion of Schedule in to the petition, is also not in accordance with the Court-fees Act.

2. Turning to the Court-fees Act, Section 19-I provides :

"No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth In the third schedule, and the Court is satisfied that the fee mentioned in No. 11 of the first schedule has been paid on such valuation."

Therefore, two conditions are laid down before an order entitling the petitioner to the grant of probate can be passed and the two conditions are that he must file in Court a valuation of the property in accordance with the form which is to be found in the third schedule to the Court-fees Act, and the second condition is that he must pay the court-fees mentioned in No. 11 of the first schedule of the Court-fees Act.

Turning to the third schedule, we find that the form contains two annextures, annexture A which is "Valuation of the moveable and immoveable property of deceased", and Annexture B which is "Schedule of debts, etc." The form does not) contemplate any other annexture besides Annextures A B and with regard to Annexture A the person applying for probate has got to state:

"I solemnly affirm that I have truly set forth in Annexture A to this affidavit all the Property and credit which the abovenamed deceased died possessed of or was entitled to at the time of his death, and which have come, or are likely to come, to my hands,"

So that Annexture A must comprise not only property which has come to the hands of the executor but also property which is likely to come to his hands. Any property which the deceased died possessed of or was entitled to at the time of his death must be shown in Annexture A.

Annexture A then sets out how various properties moveable immoveable are to be valued when we turn to immoveable Property the mode of valuation is laid down and the mode of valuation is this. In the case of houses the petitioner has to give the description, the assessed value, if any, and the number of years assessment the market-value is estimated at, and in the case or land, the area, the market-value and all rents that have accrued.

3. It may be pointed out, in view of certain authorities to which reference will be Presently made, that in the case of book debts what has got t

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