1. This appeal is directed against the order of the District Judge, Cuttack-Sambalpur, granting probate to the plaintiff (respondent No. 1) of a will executed by his father, the deceased Agari Tihadi. The appellant is the daughter-in-law of Sadru Charan Tihadi, the younger son of the testator, Madhusudan Tihadi being the elder son. Sadhu Charan predeceased his father leaving his widow Janjali Dibya and a son, Shyama, who was a minor at the time of his death. Shyama also died a minor, leaving Koili the appellant, his widow, surviving him. The testator, Agani Tihadi, executed the will in question on 18-12-1940 and died on 27-3-1942. The application for probate was filed in the Court of the District Judge, Cuttack, on 13-9-1944, by Madhusudan Tihadi. The ground taken, on behalf of the caveators, is that the will was brought about by undue influence and fraud practised by Madhusudan (respondent No. 1) and that it was not properly executed and attested. Under the terms of the will respondent No. I gets a tenanna share of the properties bequeathed by Agani while the appellant gets only a six annas share. On this ground the will is impugned as having been brought about by undue influence practised by respondent No. 1 on the testator.
2. Four witnesses were examined on behalf of the applicant (respondent No. 1) before the learned District Judge and they proved the due execution and attestation of the will. The learned District Judge accepted the evidence of these witnesses. On going through their depositions, we see no reason to differ from the view he has taken. The witnesses examined for the appellants do not suggest that the will was brought about by undue influence or fraud practised by Madhusudan, except that D.W. 3 states that Madhusudan the plaintiff was present during the registration of the will. In agreement with the learned District Judge, we accept the evidence of the witnesses examined for the plaintiff and hold that the will has been validly executed and attested and has not been vitiated by undue influence or fraud. It is urged before us, on behalf of the appellants that this finding of the learned District Judge should not be accepted. It is pointed out that the evidence on the side of the plaintiff that Madhusudan was not present at the Choupati where the will is said to have been written, should not have been accepted, that there is at least the evidence of P.W. 3 that Madhusudan was at such a distance that he could see that a will was being executed and the evidence of P.W. 4 who says that Madhu was coming to the Choupati then. The other two witnesses, however, deny the presence of Madhu at the place. Even if the evidence of P.W. 3 and P.W. 4 were to be accepted, it does not go so far as to suggest that Madhu took any active part in the preparation and getting up of the will. The mere physical presence of a legatee at the time of the execution of the will, without anything more, is not such a circumstance as to arouse the suspicion of a Probate Court about the disposing capacity of the testator. What the law requires is that a person who has taken an active part in the preparation of a will and is benefited under the will, to the disadvantage of other legatees, should clear himself and satisfy the Court that he has taken no undue advantage or exercised any undue influence on the testator for his own benefit. In VELLASWAMI v. SIVARAMAN, AIR (17) 1930 PC 24, the Judicial Committee had to deal with a ease where the principal beneficiary under the will happened to be the propounder. It was proved that the propounder took a leading part in giving instructions for the will and in procuring its execution and registration. In such circumstances, the Judicial Committee held that they were enough to excite the suspicion of a Probate Court and require it to examine evidence in support of the will with great vigilance and scrutiny, and that the propounder will not be entitled to a probate until the evidence removes such suspicion and proves that the testator approved of the will. The principle enunciated in this case has been reiterated in another case of the Privy Council, reported in 'HARMES v. HINKSON, AIR (33) 1946 PC 156, where it is laid down that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite, the suspicion of the Court, but suspicion of the circumstances, however grave, will not Justify a Judge to disbelieve the witnesses or to close his mind to truth. In the case before us, all that has been attempted to be suggested is that Madhusudan was present it the time of the execution of the will. Even if we were to accept that as a proved fact, it Is not such a circumstance as to necessarily arouse the suspicion of a Probate Court, so as to make it think that the disposition made under the will was not of a free mind or that undue influence was brought to bear on the testator. Mr. Dhal, learned Counsel for the appellants, suggested that the fact that an extra share was given to the plaintiff is itself a circumstance which should arouse the suspicion of the Court. But in our opinion there may be justifying reasons for giving an extra share to the plaintiff. The will itself states that the plaintiff had helped the testator in the acquisition of the properties bequeathed. Whether it was so or not, it cannot be said that the plaintiff was responsible for inducing the testator to give him an extra share. Mr. Dhal also pointed out that some of the properties were ancestral and that the rest grew out of them. Whether that is so or not is not a matter that is required to be considered by us and we are not called upon to pronounce any opinion on the validity of the bequests made under the will. The appellant, if he is so advised, will certainly be entitled to raise this question in appropriate proceedings questioning the validity of the dispositions. All that we are concerned with in these proceedings is to see if the valid execution of the will has been proved and whether the testator was in a fit condition of mind at the time of the execution and attestation of the will. The testator admittedly lived for more than 15 months after the execution of the will and, as the learned District Judge has pointed out, he has signed on the body of the document at several places and at two places before the Registrar when he went to his house to have the document registered. All that has been suggested about his health is that he was suffering from diabetes. The evidence led on behalf of the appellant is not such as to induce us to believe that the testator was not in a fit state of mind at the time of the execution of the will.
3. Having regard to these circumstances, we are satisfied that the will of Agani Thadi is genuine and has been validly executed. The order of the District Judge, granting probate to respondent No. 1 Madhusudan Tihadi is, therefore, affirmed and this appeal is dismissed with costs.
4. I agree.