Varadaraja Iyengar, J.
1. This appeal is against an order of the District Court of Anjikaimal granting probate of a will.
2. Ramaswamy Iyer, the testator, died on 10-6-1126 leaving him surviving five sons, viz., the applicant for probate, Venkitasubramoni, and three respondents to the application, Narayanan, Krishna-swami and Venkitaraman and also Hariharan, since deceased. Ramaswami Iyer had effected a partition of his self-acquired properties among his five sons, in or about 1112, retaining the properties dealt with under the will, for his own share. For about ten years previous to his 'death, Ramaswami Iyer had been residing with his eldest son Venkitasubramoni and during the latter half of the period, he had been suffering from cancer of the cheek.
The will in question was executed on 15-8-1125, and registered the next day and provided for certain legacies in favour of two of the younger sons Krishnaswami and Venkitaraman and the devolution of all the rest, forming practically the major portion of the estate in favour of Venkitasubramoni who was besides appointed executor under the will. Narayanan and Hariharan were characterised as wastrels and denied any share. It was this last aspect really that occasioned the caveat entered by Narayanan against the grant of probate applied for. Krishnaswami also entered separate caveat but he withdrew from the contest at later stage.
3. The grounds of contest raised were reflected by the issues 1 to 5 in the case as follows:--
(1) Whether the alleged will said to have been executed by the' deceased. Ramaswami Iyer, was genuine and validly executed?
(2) Whether the alleged will, is void due to the undue influence, fraud, coercion or importunities exercised by the 'petitioner upon the deceased Ramaswami Iyer?
(3) Whether the deceased Ramaswami Iyer was in a sound disposing state of mind at the time of the execution of the alleged will?
(4) Whether the deceased Ramaswami Iyer was affected by old age, illness and infirmity so as to make him unconscious of, what he is doing, at the time of the execution of the alleged will?
(5) Whether the deceased Ramaswami Iyer wasfully aware of the extent of the properties ownedby him.
4. Both parties let in evidence in support of their respective case but the caveator's counsel at the stage of argument, withdrew the attack on the genuineness of the will covered by Issue 1 and also conceded that the evidence let in on his side was worthless and he was placing no reliance thereon. On the balance of evidence the court below found that the cancer of the cheek which affected Ramaswami Iyer did not prevent him from carrying on his usual avocations, that in fact till one month before his death he was having his regular temple visits without any difficulty. After execution of the. will and some time before his death he had gone for his son's marriage at Perumbavoor and there, had looked after all the details himself.
There was again his attendance at the Rent Controller's Office when he was examined as a witness in a case filed by him and vigorously cross examined. The court also found that although the deceased was living with and also looked after by the petitioner for about 10 years previous to his death the will was the result of his own free volition. Indeed all his other children used to come to the house where he was residing and Ramaswami Iyer had made no secret of his intentions to execute a will and in particular with the dispositions which he finally made. In the result the court found all the issues in favour of the petitioner and granted probate accordingly. Hence this appeal by the 1st respondent in the court below.
5. It will be convenient before proceeding further, to state in bit more detail the scheme adopted by the testator in his will. There were as assests only two items of immovable properties: (1) 50 cents of building site with seven houses there on and subject to a simple mortgage of Rs. 10,000/-and (ii) 16 cents of paramba with a house thereon, both situate in Ernakulam town. On the other side, the liabilities consisted of debits against the testator in the trade accounts of the eldest son Venkitasubramoni to the extent of Rs. 10,408-8-5 ps.
This amount was said to be made up of three items (i) Rs. 3,908-8-5 prior borrowings and (ii) Rs. 4,500; and (iii) Rs. 2,000 being present borrowings for discharge of the dues of the testator's two daughters Subbalakshmi and Muthulekshim.
These dues of the daughters were explained as consisting of appropriations made by the testator of Rs. 1,500 each from their respective stridhanam amounts, the balance being donations made to them out of love and affection. The legacies under the will in favour of Krishnaswami and Venkitaraman were in respect of 6 cents and a house thereon from out of item 1, for each, but totally unencumbered and all the rest of the assets and liabilities in favour of Venkitasubramoni, who was to protect the testator for the rest of his life-time and also to meet the funeral expenses. The will mentioned that ' Narayanan and Hariharan had run through all the share of properties originally allotted to them in 1112 and on that account had been helped and that beyond measure, by contributions made by the testator. So no provision was being made in their favour.
6. Mr. K.P. Abraham, learned counsel for the appellant, urged before us that this was a case where there were circumstances exciting the suspicion of the court and the, burden lay on the petitioner propounding the will to remove such suspicion and prove affirmatively that the testator knew, and approved the contents of the document. Learned Counsel relied on the fact that the petitioner had been made beneficiary to the most extent under the provisions of the will particularly when the testator was old and ill and besides was under his control, and further commented on what he called the artificial recitals made in the will about the debts due from the deceased and the non-production by the petitioner of his books of account in this connection.
7. It is no doubt , true that a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as to take away the free agency of the testator, is void. See Section 61 of the Indian Succession Act, 1925. But to constitute undue influence for setting aside a will neither fiduciary relationship nor a dominating position will avail. The circumstance that one person had unbounded influence over another even though it was a very bad influence, would not be undue influence so as to invalidate the latter's will. As observed in Charu Chandra v. Khitish Chandra, AIR 1948 Cal 351 (A):
'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 are all legitimate and may be fairly pressed on the testator. But 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'.
The observations of Lord Penzance in Hall v. Hall, 1868-1 P and D 481(B) are very pertinent in this connection.
'Importunity or threats such as the testator has not 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, to which the free play of the testator's judgment, discretion or wish, is overborne, would 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 and not the record of any one else'.
8. The question of undue influence recently came up for full and detailed consideration in Naresh Charan Das Gupta v. Paresh Gharan Das, (S) AIR 1955 SC 363 (C), Venkitarama Iyer, J., delivering the judgment of the court observed:
'When once it has been proved that a will hasbeen executed with due solemnities by a person ofcompetent understanding and . apparently , a freeagent, the burden of proving that it was executedunder undue influence is on the party who alleges it'.
and defining 'undue influence' the learned Judgesaid: .
'It is elementary law that it is not 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 disposition in his favour. 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 other of these two categories--the will cannot be attacked on the ground of undue influence'.
And it is well to remember at this stage the caution expressed by Lord Du Parcq in Harmes v. Hinkson, AIR 1946 PC 156 (D), in dealing with the rules as to onus:
'These rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredibility. He is never required to close his mind to the truth'.
In this case it is clear that the transaction was not so imprudent as to suggest the idea that the donor was not the master of himself and not in a state of mind to weigh what he was doing. He had not omitted to notice the claims of all the sons and daughters. It was his choice to make no provision in the will for two of his sons or for the matter of that any grandson as he had contemplated in' a prior draft. If the provision for payment of his debts was to any extent artificial that was again his choice. And we cannot forget the long interval of time of above ten months which elapsed between the execution of the will and the death of the deceased. During all this interval the objector and other sons had frequent occasions to meet the testator and discuss with him the ultimate disposition of his properties and the will had remained unquestioned. On the whole the decision of the court below upholding the will and granting probate thereof is, in our judgment, perfectly justified.
9. The appeal fails in the result and is dismissed with costs.