Kumaraswami Sastri, J.
1. This suit arises out of an application for probate of a will alleged to have been left by one Ramakrishna Naidu who died on the 31st of January, 1925. The petitionor is the father of the testator and claims to be executor under the will. The defendant is the widow of Ramakrishna Naidu and she opposes the grant. She states that she was not aware that her husband left any will, that her husband was at the time of the alleged execution of the will an inpatient in the Surgical Ward in the General Hospital, that the will even if executed is invalid and inoperative, that the petitioner for probate and his wife were always inimical towards her and her children, that they exercised undue influence over her husband, that she and her husband were living a happy married life and that it is extremely unlikely that her husband would have voluntarily deprived her of the guardianship and custody of her five minor children and cut her off with a maintenance of Rs. 7 a month.
2. The following issues were settled:
1. Was the document expounded executed By the deceased and duly attested?
2. Was the deceased in a sound disposing state of mind at the time of the alleged execution of the document?
3. To what relief, if any, is the plaintiff entitled?
3. I think a further issue arises as to whether the will was brought about by the exercise of fraud or undue influence.
4. Ramakrishna Naidu, the husband of the defendant, was employed in the Government of India as a Stenographer. For some months before his death he was suffering from the distressing complaint of spinal tuberculosis or spinal caires which prevented his getting out of bed. In fact for some months before his death he was unable to sit up and was always lying on his bed. We find from the letters which have been filed as Ex. I series that he was suffering from very great pain and that even as early as the 26th of March, the pain was so great that he swooned and fell down while attempting to go to a shop in Allahabad. In a letter dated the 24th of February, 1924 he writes to his wife about his health as follows:
For the last three months I have been feeling great pain in my chest and stomach and I am not able to freely bend or lie down. Medicines have no effect. My right leg is also paining. By the time I finish this letter the pain on my back has become insufferable and I dare say that you will not be able to recognise me if you see me now. What shall I do? If I think of taking leave I am oppressed with the thought of having to look after five stomachs excluding myself, which is seen going to become six including the one in your womb. Am I at least free after providing for maintenance? I have to equally provide you all with good clothes and ornaments. I am at a loss to know the divine dispensation. Sweet embraces and kisses to my children and the same to you.
5. In the letter of the 6th March, 1924 he says:
You had enquired what I was ailing from? I have pain all over the body....
6. In the letter of the 15th of March, he writes:
My pain is still like before. Now my knees also are paining much. I am unable to walk. The back aches, its severity is fully known to me alone who suffers. With all this pain I am attending office work, biting the teeth.
7. On the 26th of March, he writes:
Some days back I had gone to the fruit bazaar in Allahabad in the accompaniment ,of two Punjabi friends. All at once I felt weak and unconscious and fell down in the ground feeling only a hard blow on my head. On my regaining senses I was told by my friends that I was dawn for a pretty long time, in spite of their best efforts to help me. If I had died then, or if I was run over by any passing carriage I would have been relieved of these worldly miseries. I have survived this crisis, probably only to be teased by all the people who have made it a point to do so.
8. The diary kept by the deceased has been filed as Ex. C and we find entries therein which show that he was suffering very much. On the 28th of May, 1924 he writes in his diary
The pain became so acute in the evening that I began to roll in the bed cursing my fate.
9. On the 29th he says that he spent a sleepless night and that the doctor came and thought that he had an attack of tuberculosis. He says:
Whatever may be the opinion of doctor I am having hell of a time.
10. On the 30th he says that the doctor was not sure as to the exact nature of the disease, and that the pain on the back would not allow him to sit for more than a few minutes. Then he took leave and came to Madras as appears from the entry in his diary on the 12th of May. His suffering increased and he became an in-patient in the Officers' Quarters in the General Hospital. Treatment did him no good and he was taken to a place near Feroke for Ayurvedic treatment and he died on the 31st of January, 1925.
11. So far as the defendant is concerned the evidence shows that her health was not good. During the nine years she was living with her husband, she had six children, five of whom are now alive. It appears from the letters which I have referred to that in March 1924 she was en ciente and the last child was born in May 1924. The confinement was very difficult and she was dangerously ill some time before her husband came to Madras. A telegram was sent to her husband as to her difficult confinement but his illness prevented him from going to her. There can be little doubt from her evidence that when her husband was ill in the General Hospital her health was bad. She had five young children in her hands and she and her last child was ill. Her husband, when he came on leave and before he went to the General Hospital, went to Coimbatore and saw his wife and children. He was taking some medicine there but finding no relief he left his wife and children at Coimbatore and came down to Madras and went to the General Hospital and was admitted as an in-patient. It is not suggested that her husband had any house in Madras and I see no reason to disbelieve the evidence of the defendant that her husband asked her and the children to remain in mofussal, that he came down to Madras stating that he would put himself under treatment and return as soon as possible and that while in Madras he was an in-patient in the Officers' Quarters in the General Hospital, and had no other residence or place where his wife and children could stay if they came to Madras. The petitioner is the father of the testator. The testator had a brother called Narayana and his mother was also alive. The evidence of the defendant and of Kesavalu Naidu, a friend of her husband, who is a retired Supervisor in the Military Accounts Department shows that the feelings between her husband's parents and the defendant were not at all friendly. Her husband rose from a small beginning and as is not uncommon in Hindu families, the parents resented any great affection which was shown By the husband to the wife. The letters Ex. I series also show that the defendant was not pulling on well with her husband's parents. The defendant states that after her husband came to the Hospital in Madras and she was in mofussal, she did not receive any communication from her husband or his parents, that she was ill as also her last child, that she came to Madras about the 11th or 12th of November, 1924 accompanied by her father, that when she saw her husband he asked her where the children were, and she said she had left them with her junior paternal uncle, that she asked him about the absence of letters and he said that he had sent letters and money and she did not come to Madras all these days when he was ill and so on, that she said that she had received no letters or money and nobody informed her about his health, that she wrote to Kesavalu and on coming to know of his health she came to Madras, that her husband said he would make enquiries of his younger brother Narayana and let her know, that he said that he asked his brother whether he sent any letters or money to her and the brother gave no reply, that she remained in Madras for five days, and was taking meals in a hotel and going to the hospital, that her husband's parents never made any enquiries about her or invited her to come and stay with them, but that on the contrary when they saw her they abused her and asked her why she came there, that after she was for five days in Madras her husband said that her health was not good and the child was ill and asked her to go back, that during the time she was in Madras her husband never told her about any will he had executed or that he had any intention to execute one and that she went back to mofussal at her husband's request. Kesavalu Naidu, who is a respectable witness, states that he did not know that the defendant's husband was in the General Hospital and that when he went to see a relation of his who was ill there he found that Rama-krishna Naidu was seriously ill. He says that he received a fitter from the defendant enquiring about the welfare of her husband and as to how many months he would have to stay in the hospital, that he went to the hospital and showed his wife's letter to the testator, that the testator read it and said that he had made proper arrangements with his brother Narayana to send her money for maintenance and also write to her, that on seeing the letter of his wife the testator thought that his brother might have disappointed them, that the parents of the testator were there at the time and on seeing the testator read the letter they asked him whose letter it was and he said it was a letter from his wife and they said it was a useless letter and asked him not to talk much and said that the doctor would be annoyed and that he then left. He also says that when defendant's father-in-law brought her from Coimbatore to Delhi and stayed in Calcutta where the witness was then employed he found that the defendant had been starving four or five days and had received no attention whatever.
12. On the 11th of November, 1924, about a week before the execution of the will we find the following entry in the diary kept by Ramakrishna:
My wife and father-in-law came to see me. From my wife's behaviour it appeared that she came to Madras not so much to see me and attend upon me but to get more money from me. When she came she brought with her only the last born babe leaving the other children at Sennimalai. When questioned why she did not bring all children with her, she could not give me a satisfactory reply. When she came to see me in hospital her father also followed her but instead of coming into my room he used to go to Mr. Doraiswami Mudaliar who was undergoing treatment in the next room and spoke ill of my parents. Ex passent. My father-in-law is said to have declared that so long as he lived he won't allow his daughter to live with me in the midst of my parents, though Mr. Doraiswami Mudaliar advised him to the contrary.
13. On the 15th we find the entry
They left the place abruptly. My father-in-law did not even take leave of me.
14. On the 16th we find the following entry
Wife and father-in-law left Madras for Sennimalai.
15. There are no entries on the 17th and 18th and on the 19th we have this entry
The will was executed to-day.
16. There can be no little doubt that shortly before the execution of the will the testator thought that his wife did not care for him but rather wanted his money in anticipation of his death and that her father was vilifying his parents and himself and did not attend on him. Now it is clear from the letters written to the defendant and the money order coupons that have been produced that till he came to General Hospital he was on very affectionate terms with his wife. She had borne him six children and the letters which he wrote to her in March before he came to Madras breathe great affection for her and the children. He states that even though he was suffering very much he did not want to take leave because he thought he may not be able to keep his wife and children in comfort. He talks of a present which he was buying for her and which would come to her as a surprise gift. On reading the letters it is impossible to hold that till he came to Madras for treatment he had the slightest cause for being dissatisfied with his wife. Unfortunately when he came to Madras for treatment his wife was also ill. She had a very difficult delivery a short time before and both she and the child were suffering very much and as the husband had no house in Madras and as he was going to the General Hospital for treatment I see no reason to doubt the statement of the defendant that when he left Coimbatore for Madras for treatment in the General Hospital he asked her and the children to remain in mofussal and said that he would get treated and come back. The only relations who were with the testator in Madras were his father, mother and brother. I have little doubt on the evidence in this case that they were not well disposed towards the defendant. It also appears from the evidence that though Narayana was asked by the testator to write to his wife and to send money to her he did nothing, and the testator who had no reason to think that his brother was not complying with his wishes probably thought that his wife was neglecting him and he was encouraged in this belief by his father and brother.
17. Turning to the terms of the will I cannot help remarking that it is an extremely harsh and cruel will. His wife is deprived of the custody and guardianship of all her children. As regards the children under five years of age she is to keep the children until they attain their fifth year and hand them over to his parents or brother. She is to get a maintenance of Rs. 7 a month should she live separately and she is to receive Rs. 5 if she lived with his parents. It appears from his own letters written to his wife that the feelings between his wife and his parents were not cordial and he must have known what miserable life she would lead after his death if she had to live with his parents. She was left with the choice of either leading a miserable existence in their house or live apart separated from her children. I find it difficult to conceive of a greater refinement of cruelty than is contained in the provisions of this will. Now, regard being had to the affectionate terms which existed between the wife and the husband before the husband left Coimbatore to come to Madras for treatment I can only account for the sudden change which came over him when he executed the will by the unfounded suspicion that had been created in his mind that his wife was not caring for him but that she came to Madras for getting money from him and make sure how long he will last. It should be remembered that at the time of leaving the will and some months before that he was suffering acutely. For some months before he executed the will it is admitted that he was not able to get up from bed. Spinal tuberculosis rendered it impossible for him even to sit up. He had to do everything in bed. liven before he took leave he was extremely weak and suffering a great deal and the few months that intervened between his coming to Madras and leaving the will must have rendered his position extremely miserable. I have little doubt that this position must have been known to be hopeless almost about the time when he left the will. I see no reason to disbelieve the evidence of the defendant and Kesavalu Naidu and I think it is clear that the father and the brother of the testator influenced him against his wife by suggesting that she did not care for him and that in order to estrange them the father and brother did not write to her about the testator's health or send her any money although the brother was asked to do so by the testator. They have not ventured to go into the box and contradict the evidence given against them and on this part of the case I think the evidence and probabilities show that for their own ulterior purpose they prejudiced the testator against his wife.
18. As regards the terms of the will although the plaintiff derives no direct benefit under the will, they have the control over the property left by the deceased amounting to Rs. 10,670-0-0, and the custody and bringing up of the children so that it is obvious that they would maintain themselves and the children with the income. There is also a legacy of Rs. 500 to the testator's sister and Rs. 500 to Narayana, his brother.
19. It is significant that in his diary the testator states that his father-in-law had declared that so long as he lived he would not allow his daughter to live with the testator in the midst of his parents and that he was also vilifying him. This was not said in his presence and somebody must have invented this story to prejudice him against his wife and her father. He says that his father-in-law was speaking ill of his parents. Here again somebody must have told him this story, and as only his parents and brother were with him it is extremely probable that they prejudiced him by trying to make out that both his wife and her father were after his property and did not care for him. It is easy to see what the effect of all this would be on a chronic invalid like the testator who had to spend almost all his time in bed and in constant severe pain. It may be that his intellect was not clouded but he must have been weak and amenable to suggestions of the kind made to him that his wife was not going to see him was due to her indifference and the aversion he suddenly took was due to the machinations of the parents and brother of the deceased. There is no reason why the defendant who was in affectionate terms with her husband would not have come to see him if she was kept informed of his health. On the evidence and probabilities I have no hesitation in coming to the conclusion that the testator and his wife were on very affectionate terms till the, testator came to Madras for treatment, that he was suffering very much for some months before he executed the will, that he was extremely feeble in body and that taking advantage of these facts his parents and brother who were not well disposed towards the defendant prejudiced him very much against her and suggested the idea that he was being neglected by those who ought to be near him.
20. As regards the exact state of his health in the hospital at the time the will was executed the plaintiff has adduced no medical evidence. The only evidence adduced by the plaintiff is that of Viswanatha Sastri, a vakil of this Court and Kalyana Chetty, who is an attesting witness to the will. Viswanatha Sastri says that Kaliyana Chetty, plaintiff's second witness, told him that the deceased was in the General Hospital in Officers' Quarters and wanted to leave a will and wanted legal advice, that he went to the hospital and had two interviews with the testator and that the will was written and executed. He says that at the first interview the testator gave him instructions which he took down and he proves that the will Ex. A was executed and attested. He states that at the time the testator seemed to understand everything rationally. He states that the words in the will 'For reasons best known to myself and in the best interests of the minor children, etc.' were the testator's own words and that he the witness did not want to know what the reasons were. He states that the testator's father and mother were present and that the particulars for the preparation of the will were given by all of them. Plaintiff's second witness Kalyana Chetty says that he was present at the time of the execution of the will and attested the will and saw the other witnesses also attest the will and that he identified Ramakrishna Naidu before the Sub-Registrar. He says that the testator was in sound state of mind when he dictated the terms of the will. He says that the testator told him that he was not happy with his wife because she did not attend on him during his illness. He admits that the deceased was unable to sit up and that he was able to write only lying on his back. On this evidence there can be no doubt that the will was executed by the deceased. But the question is whether, where a person who had been enfeebled by a painful illness and had been suffering great pain for some months before the will was executed is led into the belief that his wife was neglecting him and that she and her father are only after his property and where the testator's father and brother in order to' mislead the testator into the belief that his wife is neglecting him did not write to her about his health or send her any moneys to come down to Madras though the testator asked them to do so, the will executed by the testator who conceives an unreasonable dislike to his wife brought about by the machinations of those who were near him can be valid. I am unable to bring myself to hold that such a will is valid. I find it difficult to resist the conclusion that the parents and the brother of the deceased who were not on good terms with the wife of the deceased purposely refrained from writing to her about Bis health and sending any moneys to her though the testator wanted his brother to do so and that they prejudiced the testator against his wife by telling him that his wife was neglecting him and that even after she and her father came to Madras the testator's mind as appears from the diary was poisoned against her by telling him that his father-in-law was speaking ill of his father and was stating that he would not allow his daughter to live with the testator's parents. The entries in his diary on the 11th and 15th of November shows that he must have been prejudiced against her by statements said to have been made by others. The petitioner who is the father of the testator and the testator's brother did not venture to give evidence and I have little doubt that they did their best to poison the mind of the testator against his wife and that through no fault of hers. She was the victim of an unreasonable dislike created by the plaintiff. Under these circumstances I cannot bring myself to uphold this will.
21. Various authorities were referred to by both sides. For the plaintiff it is argued that there should be coercion in the strict sense in order to invalidate the will and that mere influence gained by one over the other and the execution of the will under such influence could not invalidate the will. Reference has been made to Win grove v. Wingrove (1885) 11 P D 81 where it was held by Sir James Hannen that in order to constitute undue influence in the eye of law there must be coercion; to Bandcims v. Richardson (1906) A C 169 where it was held that though influence may be degrading and pernicious yet it would not be undue influence in the eye of the law and to Pilkington v. Gray (1899) A C 401 where it was held that testamentary capacity is not disproved by evidence of the testator's merely eccentric acts and conduct.
22. For the defendant it is argued that in order to constitute sound testamentary capacity the testator must be in a position to realise the claims which his wife and children have on him and that where his mind has been poisoned by unfounded allegations of misconduct and he disposes of property in a manner which he would not have done but for the false statements made to him by those near him regarding his wife whom he was previously on good terms, the will cannot be said to have been executed by him while of sound disposing mind. Reference has been made to section 61 of the Indian Succession Act, 1925, which states 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 takes away the free agency of the testator, is void, and it is argued that in the present case the conduct of the plaintiff and the testator's brother would bring the case within that section. Reference has also been made to Deub v. Clark and Clark 3 Add 79 and In re Charles William Peek (5). I can see nothing in the authorities cited by the plaintiff's vakil which on the facts I have found proved constrains me to grant probate. I am of opinion that the will is not valid and dismiss the application for probate with costs.