Naresh Charan Das Gupta vs Paresh Charan Das Gupta

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 202 of 1952

Decision Date: 2 December, 1954

Coram: Mehar Chand Mahajan, Natwarlal H. Bhagwati, B. Jagannadhadas

In this case, the Supreme Court of India reported a judgment dated 2 December 1954 in the matter of Naresh Charan Das Gupta versus Paresh Charan Das Gupta. The bench that heard the appeal was composed of Justice Mehar Chand Mahajan, Justice Natwarlal H. Bhagwati and Justice B. Jagannadhadas. The appeal, numbered Civil Appeal No. 202 of 1952, was brought before the Court from a decree dated 5 March 1951 rendered by the High Court of Judicature at Calcutta. The decree under appeal stemmed from Original Decree No. 87 of 1949, which itself arose out of a decree dated 20 January 1949 in Suit No. 94 of 1946 before the Third Additional District Judge at 24 Parganas. Counsel for the appellant was the Attorney-General for India, assisted by a junior counsel. The Court recorded that the principal issue concerned the burden of proof in a case where a will is alleged to have been executed under undue influence. The judgment cited the statutory provision of the Indian Succession Act, 1925, section 63, dealing with the execution of wills with due solemnities by a person of competent understanding. The Court held that once it is established that a will was executed with the required solemnities by a testator who understood the act and appeared to act freely, the onus shifts to the party alleging undue influence to prove that such influence existed. The Court emphasized that not every influence exerted upon a testator amounts to undue influence. It is permissible for a person to present arguments, appeal to the testator’s affections, gratitude, or compassion, provided the testator retains mental capacity and no fraud or coercion is involved. Such legitimate persuasion does not invalidate the will. Conversely, any pressure that overpowers the testator’s volition, irrespective of whether it exploits fears or hopes, constitutes an unlawful restraint that defeats the validity of the will. The Court further observed that the requirement of due attestation under section 63 does not demand that attesting witnesses explicitly state in their examination-in-chief that they signed in the presence of the testator. Whether the witnesses signed the will in the testator’s presence is a factual question that must be resolved based on the evidence and the circumstances of each case. The judgment referred to several English cases—Boyse v. Rossborough, Craig v. Lamoureux and Hall v. Hall—as persuasive authorities on the nature of undue influence and the requirements of attestation. The headnote of the reported decision summarized the above principles, noting that the burden of proving undue influence lies with the challenger and that legitimate persuasion is not unlawful, whereas coercive pressure that defeats free volition invalidates a will. The citation of the case is reported as 1955 AIR 363 and 1955 SCR (1) 1035. The decision therefore clarified the legal standards applicable to claims of undue influence in the execution of wills under the Indian Succession Act.

Bankam Chandra Bannerjee and R. R. Biswas appeared on behalf of respondent No. 1. The judgment was delivered on 2 December 1954 by Justice Venkatarama Ayyappa. This appeal originated from an application filed by the first respondent seeking probate of a will dated 28 November 1943 that had been executed by Bhabesh Charan Das Gupta. The testator died on 27 October 1944 leaving two surviving sons, Paresh Charan Das (identified as the first respondent) and Naresh Charan Das (identified as the appellant), as well as a daughter named Indira, who was the second respondent. The testator’s estate comprised a one-sixth share in certain ancestral lands situated at Matta in the District of Dacca and a house numbered 50, South End Park, Calcutta, which the testator had constructed on a plot that he had purchased. In the will the testator directed that a monthly legacy of ten rupees be paid to his younger son, the appellant, for the duration of his life; that his daughter be granted a life estate in five specified rooms of the house, to be used either by her and other family members or to be let to third parties; that a monthly legacy of ten rupees be paid to either of two named hospitals; and, subject to the foregoing legacies, that the first respondent should receive the remainder of the estate, perform the sraddha rites, and bear one-sixth of the expenses associated with the worship of the deity installed in the ancestral house. The first respondent, who was appointed the sole executor under the will, subsequently applied for probate of the document.

In response, the appellant entered a caveat, causing the probate application to be converted into a suit. The appellant then filed a written statement in which three principal issues were framed: (1) whether the will had been lawfully and validly executed and attested; (2) whether the testator possessed testamentary capacity at the time of execution; and (3) whether the will had been executed under the undue influence and pressure of Paresh Charan Das Gupta, the first respondent. The Additional District Judge of the 24-Parganas, who tried the suit, ruled in favor of the first respondent on issues 1 and 2, but found against him on issue 3, and consequently refused probate. The first respondent appealed this decision to the High Court, where Judges G. N. Das and S. C. Lahiri presided. The appellant did not dispute the lower court’s finding that the testator possessed testamentary capacity. Instead, he maintained two contentions: that the will had been executed under the undue influence of the first respondent, and that the will had not been validly attested and was therefore invalid. The High Court judges rejected both contentions, ruled in favor of the first respondent, allowed the appeal, and directed that probate be granted. The caveator now challenges that judgment, asserting that the findings of the lower court on both points were erroneous, and the principal issue before this Court is whether the will was indeed executed under undue influence of the first respondent.

The matter that required determination was whether the will had been executed under the undue influence of the first respondent. The Court quoted Lord Cranworth’s observation in Boyse v. Rossborough, stating that once it is proved that a will has been made with the proper solemnities by a person of sound understanding who appears to be a free agent, the burden of proving undue influence rests on the party who makes that allegation. The Court also referred to the principle expressed in Craig v. Lamoureux. In the present case the parties did not dispute that the testator had executed the will and that he possessed the necessary mental capacity at the time of execution. Consequently, the burden shifted to the appellant, who was required to demonstrate that the will was the product of undue influence exerted by the first respondent.

The relevant facts, as they pertained to this issue, were then set out. The testator had served as a police officer and retired in 1927 with the rank of Deputy Superintendent of Police. His elder son, Paresh Charan, had been married in 1925 and had continuously lived with his parents together with his own wife and children. The testator’s wife, Nirmala, died in 1929; after her death the household was maintained by Paresh Charan’s wife. The younger son, Naresh Charan, had studied up to the Intermediate of Arts but in 1920 abandoned his studies and took a modest wage in the workshop of Tata & Co. at Jamshedpur, after which he effectively lived apart from the family. In 1928 Naresh Charan married a widow named Shantimayi, who had children from her first marriage. Shantimayi belonged to the Kayastha caste, while Naresh Charan belonged to the Baid caste. The testator was strongly opposed to this intercaste marriage, as noted in footnote (1) [1857] 6 H.L.O. 2: 10 E R 1192 and footnote (2) 1920 A.C. 349, and he had made vigorous attempts to prevent it, though without success. Correspondence between the appellant and his father during that period clearly revealed the father’s deep displeasure at the alliance, with the father even writing that the marriage would cause him pain even if his son were to die.

With this background, the Court turned to the provisions contained in the will. The will’s recitals stated: “My younger son Sri Naresh Charan Das Gupta is behaving badly with me and without ray knowledge and consent be has married a girl of a different caste and she has given birth to two female children and one male child. In these circumstances my said son Sri Naresh Charan Das Gupta and his son Sreeman Arun Gupta and the two daughters or any other son or daughter who may be born to him, will not be entitled to perform my sradh or to offer me Pindas. For all these reasons I deprive my second son Sri Naresh Charan and his son Sreeman Arun Gupta and his two daughters and any other sons or daughters who may be born to him as well as Naresh’s wife Sreemati Santi of inheritance from me and from all my”.

The testator declared that neither his younger son nor the son’s descendants, including his grandchildren, would receive any share, interest, possession or inheritance in either his movable or immovable property, whether ancestral or self-acquired. The Court noted that there is no dispute that these statements correspond exactly with what the testator expressed in his letters at the time of the marriage and for several years afterwards. However, it was contended that more than ten years elapsed before the will was actually executed, and that during that interval the testator’s natural affection for his son revived, that he forgave and forgot the earlier offence, and that, at the moment of executing the will, the passages extracted from the will did not accurately reflect the testator’s then-existing mindset. The Court examined the complete set of correspondence exchanged between the testator, the appellant and other members of the family. The letters revealed that the testator repeatedly inquired about the appellant’s health, sent him medicines on several occasions, and expressed affectionate concern for his children by sending them cloth gifts. Later, the testator’s attitude toward the appellant’s wife changed; he invited her and her children to Calcutta, he stayed with them for a period at Jamshedpur, and he offered the appellant advice on matters concerning his employment. It was argued that these facts demonstrated a gradual softening of the father’s heart toward the appellant and his family, that the provisions in the will could not be reconciled with this change of attitude, and that the provisions must therefore have been induced by the first respondent. The Court disagreed with that submission. It observed that it is one matter for a father who believes he has been wronged by a disobedient son to wish the son well in life, but it is entirely another matter to be prepared to part with his own property. The Court found that, throughout the correspondence placed before it, there was no indication that the testator intended the appellant to share in his estate. Conversely, the Court noted that even when the appellant faced financial hardship, the testator maintained that he bore no obligation to provide assistance, as shown in Exhibits 5(c) and C(1). Moreover, after executing the will on 28-11-1943, the testator continued to write to the appellant and his family in exactly the same terms as before, as evidenced by Exhibits B(2), C(4) and A(10). This continuity demonstrates that the currents of paternal affection and of property disposition operated independently, and that a change in emotional affection did not alter the testator’s resolve regarding his property. The Court further observed that the testator, as reflected in his letters, was a person of strong will, resolute and unshakable in his decisions. He described himself in Exhibit C(34) as “one-third conservative, one-third liberal and one-third autocratic”. He was very

In this case the testator was described as being very attentive to the honour and reputation of his family and he was deeply offended when his son contracted a marriage that was disapproved of by their community. The testator expressed this feeling in Exhibit 6(c) where he wrote, “You broke our hearts for a woman who has no right to be in my house.” Moreover, as late as 25-December-1941 he wrote a letter to the appellant warning that if the appellant’s wife and children were to move in with him they would have to be prepared to endure unsolicited taunts and unpleasant inquiries from both nearby and distant village relations who would come to see them, as shown in Exhibit C(37). From these statements the Court concluded that there could be no doubt that the testator had long been suffering a sense of social humiliation because of the inter-caste marriage, and that the passages in the will reflected a wound in his heart that remained unhealed until his death.

The appellant argued that the dispositions made in the will were unnatural because the appellant had been practically disinherited and his children had been completely ignored. The Court observed that such a circumstance alone did not establish any inference of undue influence exerted by the first respondent. Considering the testator’s character and his strong feelings on the matter, it was not surprising that he chose to give the appellant only a modest legacy. The Court further noted that the probate petition indicated that the total net value of the estate was Rs 23,865-10-9. After deducting other legacies and charges, the portion left to the first respondent was not a large amount. At the relevant time the testator’s salary was Rs 60 per mensem and he supported several children, whereas the appellant’s basic salary was Rs 250 per mensem. The first respondent, his wife and children had consistently been dependents of the testator, while the appellant had been living apart from the testator since 1920. Therefore, it was not unusual for the testator to distribute his estate in a way that preserved the existing state of affairs. Consequently, the terms of the will could not be treated as intrinsic evidence of undue influence, as the appellant had contended.

The evidence of Indira, the testator’s daughter, was also examined. She gave testimony under commission that the testator had confided in her about domestic troubles. According to her, the elder son objected to staying with the younger son because “if they live together, there will be social trouble regarding his daughter’s marriage,” and this prompted the testator to desire the execution of a will. Indira further stated that the testator later wished to amend the will and repeatedly called for her presence to discuss the matter. She declined each time, explaining that she did not wish to intervene. On those occasions the testator is reported to have told her, “At present this…”. The record ends at this point, leaving the incomplete statement as it appears in the original material.

Indira, the daughter of the testator, gave evidence that the testator had confided in her about troubles in the household, noting that the elder son objected to living with the younger son because such an arrangement might cause social difficulties concerning the elder son’s daughter’s marriage, and that the testator therefore wished to make a will. She further testified that the testator later expressed a desire to modify the will and asked her to come for discussions on several occasions, but she declined because she did not want to intervene. On those occasions the testator is reported to have said, “At present this will stand, but I want to modify it in future.” Indira also stated that the first respondent and his wife had told the testator that there had been no change in the appellant’s behaviour, that the appellant was extravagant in his habits, had incurred debts, and had taken away some articles. The Court observed that it could not rely on this evidence as safe proof. Exhibit I revealed that Indira and her husband had aligned themselves with the appellant against the first respondent, writing to the first respondent that, despite the will, the appellant “should have his share as early as possible in order to avoid further complication,” while at the same time insisting on their rights under the will. When the embellishments are removed, Indira’s testimony, if accepted as true, reduces merely to the assertion that the first respondent told his father he could not live under the same roof as his brother, and that, because of this attitude, the testator omitted any share of the house for the appellant. The Court found no indication of undue influence in these statements. It held that the first respondent was free to present his views, and that as long as the ultimate decision rested with a testator whose mental capacity was intact, no undue influence could be inferred. The Court reiterated that the law distinguishes ordinary influence from undue influence, noting that it is permissible for a person to argue his case before the testator and to persuade him to make a disposition in his favour. In the absence of fraud, coercion, or compulsion, such persuasion does not amount to undue influence. The judgment quoted Lord Penzance’s observation in Hall v Hall: “But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like—these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort—these, if carried to a degree in which the free play of the testifier’s judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, not the record of someone else’s.”

Section 61 of the Indian Succession Act, 1925 provides that a will or any part of a will whose making was caused by fraud, coercion, or by importunity that removes the testator’s free agency is void. The Act includes an illustration to explain this provision. The illustration states that if a person A, who is capable of exercising his own judgment, is urged by another person B through urgent intercession and persuasion to execute a will of a particular kind, and A, while freely exercising his judgment, executes the will as B recommends, then the will is not invalidated by B’s intercession and persuasion. This example demonstrates that persuasion, even if urgent, does not necessarily defeat the testator’s free will when the testator remains fully capable of making independent decisions.

Applying this principle to the present case, the evidence shows that the testator was in full possession of his mental faculties at the time the holograph will was prepared. No evidence was adduced that the first respondent said or did anything that interfered with the testator’s free exercise of his volition. Moreover, the first respondent did not participate in the preparation, execution, or registration of the will. The will was a holograph document, and witnesses identified as P.W. 1 and P.W. 2 testified that the testator himself arranged all matters related to its execution, and that the execution took place at the residence of P.W. 1. The testator presented the document for registration, retained it with himself, and after his death it was retrieved from his cash box. He lived for nearly a year after executing the will, during which, even according to Indira’s testimony, he thought about the will, discussed it, and affirmed that it should stand. The cumulative evidence thus demonstrates that the will represents the testator’s free volition and is not the result of undue influence by the first respondent or his relatives. It should also be noted that Indira promptly sought to enforce her rights under the will after the testator’s death, and the appellant obtained payment of a legacy under the will for a period of fifteen months. No ground has been established to depart from the High Court’s assessment of the evidence, and the conclusion that the will is not susceptible to attack on the ground of undue influence is affirmed. Although the appellant contended that the will was not duly attested as required by section 63 of the Indian Succession Act and therefore should be void, that issue is addressed separately.

The appellant argued that the will should be declared void on the ground of an alleged defect in attestation. The two persons who witnessed the execution, identified as P.Ws. I and 2, testified in their examination-in-chief that they saw the testator sign the will in their presence and that they attested his signature. However, they did not add that they signed the will in the presence of the testator. On this basis the appellant contended that, because the witnesses had not stated that they signed while the testator was present, the attestation could not be deemed valid. Both Courts below rejected this contention and ruled against the appellant. The learned judges of the High Court were of the opinion that the execution and attestation took place in a single sitting at the residence of P.W. I, where the testator and the witnesses had assembled by appointment. Consequently, the judges inferred that all of them remained present until the matter was finished, and, since the witnesses were not cross-examined on the question of attestation, a proper inference of due attestation could be drawn. It cannot be laid down as a matter of law that the mere omission by the witnesses of a statement that they signed in the testator’s presence automatically invalidates the attestation. Whether the attesting witnesses actually signed in the testator’s presence must be determined by examining the surrounding circumstances revealed by the evidence. This issue is a pure question of fact that depends on the court’s appreciation of the material evidence. The finding of the lower court that the will was duly attested was based on a holistic consideration of all the materials, and that finding must be accepted. The judgment of the Additional District Judge further recorded that “the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit.” Accordingly, the appellant’s submission regarding a defect in attestation must be rejected. In the result, the decision of the High Court is confirmed, the appeal is dismissed, and no costs are awarded.