S.N. Andley, J.
(1) Pehald Singh, Harnam Singh, Jaishi Ram sons of Swan Singh and Mr. Kidko, daughter of the paid Swan Singh, filed a suit for prossession of land against Surjan, Rattan Chand, jit Singh and Partap Singh. They claimed possession of the land which had belonged to Mt. Mal to alias Rahanso. They claimed possession of this land as the nephews of Mt. Malto. defendants Nos. 2, 3 and 4 were grand nephews of Mt. Malto while defendant No. 1 Surjan was her nephew being the son of a brtoher of her husband. Mt. Malto had executed a will with respect to her property on October 3, 1961, and beneficiaries under this will were Rattan Chand, Jit Singh and Pratap Singh (Defendants Nos. 2 to 4). The will was gto registered: before the Sub-Registrar, Hamirpur. On the same date, Mt Malto; executed a document wherein she acknowledged that she had executed the aforesaid will; that the defendants had been faithfully serving her and looking after her property ; that they had paid off her debts and; they had nto charged anything for the services rendered by them. It; is further stated by her that the defendants were to perform her funeral' eremonies and that she was happy with them. She further recited that 'she could nto think of any toher persons who would even give her a drink of water. The object of executing this document is staled to be: that all these things could nto have been mentioned in the will executed by her. After slating this she goes on to say that she has, thereforee,' executed this document ; that she will nto execute any toher document in respect of her property but if she does, then she will be liable to pay to the defendants all that they had spent on her during the last 25 years and which will be recoverable from her movable and immovable properties.
(2) It is nto disputed that if Mt. Malto had died intestate, the plaintiffs would have been entitled to half of her property and the toher half would have been inherited by the defendants. The Subordinate Judge, Hamirpur, who tried this suit gave his judgment on October 20, 1964. The judgment was in respect of the following Issues :
1. Whether Smt. Rahanso deceased executed a valid will dated October 3, 1961, in favor of defendant No. 2 to 4 in respect of the property in suit? 2. Whether the alleged will was executed under fraud or undue influence? 3. Whether the plea under Issue No. 2 is nto open to the plaintiffs? 4. Whether the father of defendant No. 1 Mohar Singh abandoned his right in the land in suit? If so, the what effect? 5. Relief.
Issue No. 3 was decided in favor of the plaintiffs and they were held entitled to challenge the will and plead undue influence and fraud in connection with its execution. The learned Subordinate Judge deal with Issues 1 and 2 together. On issue No. 1 he held that the will was duly proved. For deciding Issue No. 2. he took into consideration the aforesaid document which was executed contemporaneously with the will which is marked Exhibit D. 3. In view of the age of Mt. Malto which was about 80 years at the time of the execution of the will the fact that the defendants were supporting or maintaining her in the absence of any body else the need of the testatrix for help in her old age which was given by the defendants by reason of their relationship and her dependence upon the defendants, the trial Court came to the conclusion upon a reading of section 16 of the Indian Contract Act, that the defendants were in a position to dominate the will of the testatrix. He then came to the conclusion that the defendants had utilized their position to obtain an unfair advantage and for that he relied apon the said document Exhibit D. 3 on the basis of which he entertained a reasonable suspicion that the execution of the will was the result of undue influence. Issue No. 4 is nto material to this appeal. In the result the trial Court decreed the suit to the extent of half share of the plaintiffs in the property belonging to the testatrix.
(3) Defendants No. 2 and 3 appealed to the District Judge, Hoshiarpur. against the aforesaid decree. The appeal was accpeted by order dated September, 17, 1965. The learned District Judge also examined the oral and documentary evidence produced by the parties. He concluded that there was no evidence on the record to show that the testatrix was a victim of fraund or undue influence in the execution of the will that it was natural in the circumstances to expect that the testatrix would like to give away her property to the respondents who had been serving her and that mere persuasion by the contesting respondents would nto amount to undue influence in so far as the execution of the will by the testatrix was concerned. The learned District Judge observed that Exhibit D. 3 acknowledged the rendering of services by the respondents and that the trial Court was nto justified, merely on the recitals contained in Exhibit D. 3, to come to the conclusion that the will had been executed as a result of undue influence. In the opinion of the learned District Judge the evidence on the record pointed out to the fact that the testatrix had executed the will in lieu of the services rendered to her by the respondents.
(4) In appeal in this Cout, it has first been contended on behalf of the contesting respondents that this Court should nto go behind the finding of fact arrived at by the first appellate Court that the will had nto been executed as a result of undue influence and that if that finding is accepted as it should be, the appeal should be dismissed. I do nto think that the funding of the learned District Judge is such a finding of fact which precludes this Court in second appeal from going behind it. The finding is based upon inferences that are drawn nto merely from the oral evidence but also from documentary evidence and particularly Exhibit D. 3. Such inferences will be inferences in law.
(5) For this reason learned counsel for the parties have read to me some part of the oral evidence and they buth relied upon the recitals contained in the will and the said document Exhibit D. 3 in support of their respective contentions. The facts that emerge from the oral and documentary evidence are :
1.That the testatrix, at the time of making her will, was about 80 years of age; 2. That she was illiterate as is evident from the fact that buth the will and the document Exhibit D. 3 are thumb-marked by her ; 3. that she died about 8 or 9 months after the execution of the will; 4. that she had been living and was being supported by the contesting respondents and, even according to the case of the contesting respondents, her debts had been paid off by them and the testatrix was, thereforee, under their obligation ; 5. that the will conferred an advatage upon the contesting respondents inasmuch as they gto the full property of the testatrix against their half share which they would have gto in case of intestacy and they were, thereforee, the only beneficiaries to the exclusion of the plaintiffs; 6. that Jit Singh, one of the contesting respondents, was present at the time of the execution and registration of the will ; and 7. that the document Exhibit D. 3, apart from acknowledging her obligations and indebtendness to the contesting respondents, contains a recital by way of an undertaking on the part of the testatrix that she will nto execute antoher document and that if she does, she will remain responsible for reimbursing the contesting respondents in respect of the services rendered by them to her and the amounts spent by them upon her maintenance.
(6) The contention of the appellants is that these facts do go to show that the contesting respondents were in a position to dominate the will of the testator and they did in fact dominate her will because of the apprehension created in her mind, as expressed in Exhibit D. 3, that if she makes any toher disposition of her property, she will be responsible for reimbursement to the contesting respondents and it is urged that even if there is no evidence of undue influence in or at the time of the execution of this will, there can be no doubt that the will was brought about on account of the dominating position which the contesting respondents occupied qua the testatrix. On the toher hand, the contention of the learned counsel for the contesting respondents is that the evidence, buth documentary and oral, points out to only one conclusion that there was no undue influence exercised and that the execution of the will was as a result of her own freedom of mind and action and was nto brought about by or at the instance of the contesting respondents. It is further contended that Exhibit D. 3 is in support of this contention rather than destructive of it because this document merely records the obligation that the testatrix felt for the contesting respondents.
(7) Section 61 of the Indian Succession Act, 1925, provides that a will or any part oi a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. The question is whether in the circumstances of this case there was any fraud or coercion or the exercise of importunity, that is, pressing solicitously as would bring the case within section 61.
(8) Learned counsel for the contesting respondents has relied upon Naresh Charan Das Gupta v. Paresh Charon Das Gupta and antoher, where it has been observed:
'IT is elementary law that it is nto every influence which is brought to bear on a testator that can be characterised as 'undue'. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favor. And if the testator retains his mental capacity and there is no element of fraud or-. coercion it has often been observed that undue influence may in the last analysis be brought under one or the toher of these two categogories the will cannto beattacked on the ground of undue influe nce.'
This case was at the instance of a disinherited son against his brtoher in whose favor the testator had made a will. The testator was nto under the influence of the beneficiary in this case. In fact it was the toher way about because the beneficiary was being maintained by the testator. The undue influence that was alleged to have been exercised 'by the beneficiary was that he had told his father, the testator, that he was nto prepared to live in the same house as the younger disinherited son. In the circumstances of this case, it was held that this could nto be held to be undue influence and it merely amounted to a persuation to make a disposition in his favor.
(9) There is a long line of decisions starting from Inche Noriah binte Mohamed Tahir v. Shaik Allie Din Dmar bin Abdullah Bahashuan to Ramchandra Rambux v Champahai and tohers', where the principles to be applied have been laid down. In : 6SCR814 it has been held that in all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does nto express the mind of the testator, or that it was prepared under highly suspicious circumstances it is for the propounder of the will to remove that suspicion. One of the suspicious circumst(r).nces has been held to be where the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him. It is nto necessary to refer to all the decisions that have been cited except the one which is reported in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, where it has been observed:- 'The mode of proving a will does nto ordinarily differ from that of proving any toher document except as to the special requirement old attestation prescribed in the case of a will by section 63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the disposition? made in the will being unnatural, improvable or unfair in the light of relevant circumstances or there might be toher indications in the will to show that the testator's mind was rto free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in rernoving the suspicious circumstancep the Court would grant probate, even if the will might be unnatural and might cutt off wholly or in part near relations.
(10) In the present case there is no doubt that the will has been executed by the testatrix but the question is what was her state of mind. Was what is stated in the will an expression of her free will or was it cabbed by the position of the contesting respondents, her sense of obligation to them and the fact that if she ever executed antoher document containing a different disposition of her property she will have to reimburse the contesting respondents in respect of what they had done for Ler during the last 25 years. It is true that in so far as Exhibit D. 3 is concerned, the recitals therein with respect to her maintenance by the contesting respondents and payment of of her debts by them and the maragement of her property may be said to be mere expressions of her gratitude but I cannto come to the conclusion upon a reading of the entire document that it contain- only the expression of her gratitude or the acknowlegment of her obligations to the contesting respondents. A very important fact is that Exhibit D. 3 is executed contemporaneously with the execution of the will. It contains statements which though they may nto prove fraud or undue influence to prove importunity on the part of the contesting respondents. If this is taken into consideration with the facts, namely the old age of the testator, her cont nuous residence with and maintenance by the contesting respondents during a long period of 25 years ; their management of her properties ; her death within a year of the execution of the will and the fact that those who would have gto at least half of the property at her death have been disinherited, I cannto come to any conclusion toher than this that the propounder who had taken active interest in the execution of the will and of Exhibit D. 3 were in a position to dominate her will and did dominate it. Under the circumstances, the will would cease to be a product of exercise of a free will by the testatrix.
(11) Upon this conclusion, the result would be that the will wuld be void and would nto give any rights to the contesting respondents. In the circumstances the appeal is allowed, the judgment and decree of the learned District Judge are set aside and the Judgment and decree of the Subordinate Judge, Hamirpur, are restored. In the circumstances of this case there will be no order as to costs.