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Arthur Albert Unger Vs. Mrs. Maud MartIn and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1938All201
AppellantArthur Albert Unger
RespondentMrs. Maud MartIn and ors.
Excerpt:
- - 15,000. the evidence in the case shows that of all the sons of john unger the petitioner was most business-like and had from time to time rendered pecuniary help to his father. unger was in a perfectly sound state of mind and was capable of executing a will and attending to ordinary avocations of life. it has already been stated that john unger had four sons and two daughters living and of all his issues the petitioner was well provided for. this being our conclusion the appeal must fail......was arthur albert hereinafter referred to as the petitioner, the petitioner was one of the sons of john unger. the application was successfully opposed by mrs. martin, one of the daughters of john unger, and was dismissed by the learned district judge of agra with the result that the petitioner has filed the present appeal. john unger died in agra on 24th may 1935, and the application for probate was filed on 7th july of the same year. john unger was at the time of his death 87 years of age and was admittedly in indifferent state of health for some months before his death, he had four sons and two daughters living at the time of his death. his wife had predeceased him in the year 1931. the property of which john unger was possessed of at the time of his death was worth rs. 15,000. the.....
Judgment:

Iqbal Ahmad, J.

1. This appeal arises out of an application for the probate of a will that is alleged to have been executed in Agra on 25th January 1933 by one Mr. John Arthur Unger. The applicant in the ease was Arthur Albert hereinafter referred to as the petitioner, the petitioner was one of the sons of John Unger. The application was successfully opposed by Mrs. Martin, one of the daughters of John Unger, and was dismissed by the learned District Judge of Agra with the result that the petitioner has filed the present appeal. John Unger died in Agra on 24th May 1935, and the application for probate was filed on 7th July of the same year. John Unger was at the time of his death 87 years of age and was admittedly in indifferent state of health for some months before his death, He had four sons and two daughters living at the time of his death. His wife had predeceased him in the year 1931. The property of which John Unger was possessed of at the time of his death was worth Rs. 15,000. The evidence in the case shows that of all the sons of John Unger the petitioner was most business-like and had from time to time rendered pecuniary help to his father. The objector Mrs. Martin is the wife of one Mr. Penat and had some children by him. Mr. Penat is alleged to have left India in the year 1922 having taken the children with him and since then the objector is living with one Mr. Martin and has two children by him. It is however clear that the objector is not the wife of Mr. Martin though throughout these proceedings she has been described as Mrs. Martin. The objector was admittedly living in Lucknow in the year 1932, and it is common ground that John Unger, after the death of his wife, lived with the objector in Lucknow in the year 1932. Further it is also common ground that John Unger came or was brought to Agra on 3rd January 1933, and thereafter continued to reside in Agra till his death.

2. The petitioner was in the service of the Bengal & Assam Railway and mostly resided in Assam. He retired from service in July 1933 and is since then living in Agra. It is however admitted by the petitioner that on the receipt of a telegram from one Mr. Carson, who is one of the attesting witnesses to the will, informing the petitioner that John Unger had arrived in Agra the petitioner came from Assam to Agra on or about 11th January 1933. It is farther an admitted fact that the petitioner was present in Agra on 25th January 1933, the date on which the will is alleged to have been executed by John Unger, The ease put forward by the petitioner was that John Unger executed the will in question of his own free will and that ho was in the enjoyment of sound disposing mind at the time of the execution of the will. These allegations were denied by Mrs. Martin who alleged that 'John Unger at the time of his signing the will was in a very feeble state of health, unable to resist importunity and in that condition be was pressed by the applicant to sign the will.' She asserted that John Unger was not 'a free agent at the time he put his signature to the will' and had not a sound disposing mind. In short Mrs. Martin, while admitting that the will in question bore the signature of John Unger, contested its validity on the ground that John Unger was, at the time of the execution of the will, in a feeble state of health and was not in the enjoyment of sound disposing mind, and that the will was the outcome of undue influence exercised on John Unger by the petitioner.

3. The will is typewritten on a sheet of white paper, is attested by two witnesses named Carson and Black, and was registered by the Sub-Registrar of Agra on the very data on which it purports to have been executed, viz. on 25th January 1933. Two of the typewritten lines of the will have been scored out and the erasures have been signed by John Unger at four places. The will including the lines that have been scored out runs as follows:

I hereby revoke all testamentary writings heretofore executed by me and declare this to be my last will. I bequeath to my son, Arthur Albert Unger, in case of my death all my property at Agra--the piece of ground with one dwelling house purchased by me and the four new houses built by me and I request him to make use of the income of my property in providing for my needy : children and grand-children. I give, devise, bequeath and appoint all the residue of my moveable and immovable property whatsoever and wheresoever unto my son, Arthur Albert Unger absolutely and I appoint my son, Arthur Albert Unger, as sole executor of this my will. In witness whereof I have hereunto set my hand this day One thousand nine hundred and thirty three.

(Sd.) J.A. Unger.

4. In the body of the will the passage beginning with the words 'I request him to make use of' and ending with the words children and grand-children' has been scored out as stated above. The learned District Judge held that

the testator was of sufficiently sound mind to understand that he was leaving his property to Mr. Arthur Unger and this had been his intention ever since his wife died in December 1931, but Mr. Arthur Unger exercised undue influence over his father's mind when he made him scratch out the request about providing for his needy children and grand-children.

5. He accordingly declined to grant probate of the will to the petitioner. To prove the case set up by him, the petitioner examined himself and the two attesting witnesses of the will. The petitioner stated that the testator was on 25th January in a sound state of mind and health and executed the will of his own accord. He added that he brought no pressure to bear on the testator. He however admitted in cross-examination that when the will was written on 25th January, the testator was 'under regular medical attendance'. He made reference in the course of his statement to various wills which were executed by the testator from time to time and we shall hereafter deal with those wills. Carson and Blank, the two attesting witnesses, also testified to the fact that the testator was at the time of the execution of the will in the fullest possession of his faculties and that no one exercised undue influence over him.

6. Carson and Black are relations, Black being the son-in-law of Carson. Black deposed that Carson was the agent of John Unger. Black was living in a cottage of one of the houses belonging to John Unger and was a discharged insolvent. The fact that Carson was interested in the petitioner is manifest from the statement of the petitioner that on 3rd January 1933, when John Unger reached Agra, Carson sent a telegram to the petitioner informing him that John Unger had arrived in Agra. Neither of these witnesses can therefore be styled an absolutely impartial and independent witnesses. The evidence of Carson shows that John Unger was hard of hearing for about three years before his death and there was pronounced impediment in his speech.

7. Two doctors, viz. Dr. Sharma and Dr. Banerji, wore also produced by the petitioner. Dr. Sharma stated that he treated John Unger from 6th January to 20th May 1933 and that on the last mentioned date Mr. Unger was in a perfectly sound state of mind and was capable of executing a will and attending to ordinary avocations of life. Dr. Banerji deposed that he treated John Unger from 19th to 24th May 1933, and that Unger died of cerebral apoplexy. He stated that Unger was in his senses until within an hour of his death. Both these doctors gave certificates in September 1933 in which they testified to the fact that the tantator was in sound state of mind till 20th May 1933 and those certificates were produced by the petitioner. The evidence of these doctors is in entire conflict with the evidence of Mrs. Martin who stated that John Unger was hard of hearing, could not remember faces or names and had three attacks of paralysis before and succumbed to the fourth attack of paralysis. She stated that the second attack of paralysis was about the year 1930 and since then John Unger was a complete wreck.

8. This is all the oral evidence that was produced in the case and the weight of that evidence was certainly in favour of the case put forward by the petitioner. But there are certain facts that counsel caution in accepting the evidence adduced by the petitioner. In the first place no doctor was consulted on 25th January about the mental capacity of the testator, and the evidence of the two doctors produced by the petitioner is open to the obvious comment that they had not examined {be testator on or about the date of the will with a view to ascertain his mental capacity, and that they were in the position of witnenses who were paid remuneration to grant certificate about the mental capacity of the testator long after the date of the alleged execution of the will. Both the doctors were questioned about the previous attacks of cerebral apoplexy and they stated that they did not discover any signs of the same in the testator. The pronounced impediment in the speech of the testator may however have been due to previous strokes of paralysis. Further in weighing the oral evidence we cannot overlook the fact that on the date of the alleged execution of the will Mrs. Martin was not in Agra and could not therefore be in a position to adduce direct evidence about the mental capacity of the testator on that date.

9. The testamentary disposition evidenced by the will in question appears to us to be a bit unnatural. It has already been stated that John Unger had four sons and two daughters living and of all his issues the petitioner was well provided for. There could therefore apparently be no reason for John Unger to leave his entire property to the petitioner and deprive his other issues. This is a circumstance that raises suspicion about the due execution of the will by John Unger. This suspicion gains strength when we compare the will in question with the previous wills that were admittedly executed by John Unger. Of the various wills executed by John Unger that are upon the record the first is dated 22nd February 1919. By that document, John Unger devised his property for life in favour of his wife, and directed that after her death the property be administered by the petitioner, and the profit of the same be used for the benefit of his children and grand-children at the discretion of the petitioner. The second will is dated 14th December 1926. By this will he devised his property in favour of his wife for her lifetime and directed that after her death the property be divided amongst his children. The third will is dated 7th January 1932. By this will he devised his property in favour of the petitioner and provided that 'I request him to make use of the income of my property in providing for my needy children and grand-children.' It would be noted that these words did appear in the typed will of 25th January 1933, and were scored out.

10. Two other wills were executed by John Unger on 17th and 18th May 1932, respectively. By those wills he, devised his property in favour of all his sons and daughters. It however appears from a letter of Mrs. Martin to the petitioner dated 9th January 1933, that these two wills were drawn up 'only to pacify' John Unger and that these wills were 'not worth the paper' on which they were written. Bat this letter is important in this respect that it shows that in May 1933 John Unger was not in a sound state of mint and could be made to append his signature to any document that reconciled itself with his whim at the time. Then we have a will executed by John Unger on 9fch January 1933. By this will ho directed that all his properties be sold and the proceeds thereof be divided equally amongst his children. He appointed his son, Cecil Unger as the executor of this will. Then we have the will in dispute dated 25th January 1933. It is clear that so long as John Unger's wife was alive, he intended to give a life-estate be her and it was his desire that after his wife's death his property he divided amongst his children. The wills that were executed by John Unger after his wife's death put it beyond doubt that nothing was farther from the mind of John Unger than to disinherit any of his children. Even by the will of 9th January 1933, ho divided his properties equally amongst all his children. Why should he then between 9th and 25th January change his mind and give the whole of the property to the petitioner is not explained. Nothing had happened between 9th and 25th January that could have so displeased John Unger with his children other than the petitioner as to induces him to deprive those children and to devise his entire property in favour of the petitioner. This fact coupled with the fact that John Unger was in failing state of health raises grave suspicion about the mental capacity of John Unger on 25th January and about the due execution of the will by him.

11. The law as to the nature of the evidence requisite to prove a will, which is one of the moat solemn documents known to law is clear. The burden to show that the will, the probate of which is sought, is the last will of a free and capable testator lies on the parson applying for the probate, and if there are suspicious circumstances attending the execution of the will the burden is on the petitioner to explain those circumstances. The burden is all the heavier when the testator is a man advanced in years and in extremely feeble state of health and the disposition evidenced by the will runs counter to the dispositions admitted to have been made by the testator by previous wills executed by him.

12. In the present case, we find that the will in question as originally typed was identical with the will of 7th January 1932 and that the two lines that have been scored out nullify the professed desire of John Unger as shown by the previous wills to give his property to all his children. The scoring out of the two lines could not therefore have been the voluntary act of John Unger. We therefore consider that the learned District Judge was right in holding that the execution of the will in question was brought about by the exercise of undue influence over John Unger. This being our conclusion the appeal must fail. We accordingly dismiss appeal with costs.


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