ORDER
A.P. Misra, J.
1. An application under Section 232 of the Indian Succession Act was moved by Smt. Manorama Srivastava, describing herself as the widow of Dr. Mithlesh Kumar Srivastava (deceased) and Km. Khushboo, minor daughter of the aforesaid deceased through applicant No. 1 under her guardianship (hereinafter referred to as the plaintiffs) for the grant of probate or Letter of Administration with a copy of the Will dated 26th April, 1986. Thereafter a caveat was filed on behalf of Smt. Saroj Srivastava also describing as widow of late Dr. Mithlesh Kumar Srivastava (hereinafter referred to as the defendant) in which it was stated that she had applied for succession certificate in the District Court. She also filed a reply by means of counter affidavit which was subsequently converted into written statement objecting to the claim made by the plaintiffs.
2. The plaintiff asserted in her aforesaid petition that Dr. Mithlesh Kumar Srivastava died at Allahabad on 15th November, 1986, leaving both moveable and immovable properties. He executed a Will on 26th April, 1986 in a sound disposing mind of his own free-will and was duly attested by the two attesting witnesses, viz., Sri R. P. Srivastava and Sri R. N. Srivastava. Under the Will the deceased bequeathed his entire moveable and immoveable properties, bank account, L.I.C. policies, National Savings Certificate, Contributory Provident Fund and all other amounts due to him to the plaintiffs. He further bequeathed his undivided share in the ancestral property to the plaintiff and son and daughter from the first wife, viz. Smt. Saroj Srivastava ( defendant). It was further averred that the bungalow No. 25 C/1, Thornhill Road, Allahabad which was subject matter of bequeath to the plaintiffs under the said Will was subsequently gifted to plaintiff No. 1 by meanis of registered gift-deed dated 2nd June, 1986. Alongwith the aforesaid application of the plaintiff a photocopy of the Will was annexed as Annexure 'A' the original Will itself was subsequently filed which was kept under seal and cover of this Court. Annexure CA-1 shows the total claim encashable for the deceased was Rs. 66,000/-out of which Rs. 26,000/- were already withdrawn by the defendant. Annexure-CA 2 shows the number of three policies which under the Will plaintiff claimed to be entitled Annexure-CA-3 shows Rs. 1,776/- the total amount in the bank of the deceased. Annexure-CA-4 refers to the ancestral house of the deceased in village Katra in the district of Faizabad along with Bhumidhari land. Finally, Annexure D showed the liability of the deceased showing various loans taken by him.
3. In the counter affidavit which was later converted into written statement the defendant challenged assertions of plaintiff describing herself as widow of Dr. Mithilesh Kumar Srivastava. It was averred that the alleged Will is forged and fabricated document. Dr. Srivastava had no intention to execute the Will. The said Will was said to be got up and afterthought document prepared by the plaintiff in collusion with the attesting witnesses. In the gift-deed executed subsequently there was no mention of the will showing it as an afterthought. Sri Atul Chandra Srivastava, Sri K. K. Srivastava and Sailendra Ranjan, father, brother and son (from first wife) respectively filed a suit for cancellation of the registered gift-deed, which is pending. This is referred to in the written statement. Deceased filed a petition for divorce against the defendant (Smt. Saroj Srivastava), which was decreed ex parte. Subsequently, she made an application under Order IX, Rule 13, C.P.C which was allowed by order dated 25th April, 1985. As against that a Civil Revision (Civil Revision No. 421 of 1985) was preferred in this Court, in which after conclusion of arguments but before delivery of judgment Dr. M. K. Srivastava died, hence an application for dismissing the revision was moved by the defendant wherein a counter affidavit was filed by plaintiff No. 1 for her substitution. That application was dismissed by this Court by means of order dated 7th January, 1987. This judgment is reported in 1987 All LJ 640. In view of this it was stated by the defendant that the plaintiff No. 1 cannot claim herself to be the legally wedded wife. Similarly, the counter affidavit (written statement) filed by Sri Atul Chand Srivastava, father of the deceased, supported the case of the defendant. In this it was stated that he sold a house out of that money plot No. 25-C/1, Thornhil Road, Allahabad was purchased in the name of his son, deceased Dr. M. K. Srivastava as benami and for the construction of the house over it he further sold his another house. He described Smt. Saroj Srivastava as the legally wedded wife and further stated that the plaintiff was only a pupil and then a research scholar under his guidance and his son came completely under her influence and it was later he heard that his son was persuaded by plaintiff No. 1 to marry her who then filed a divorce petition against the defendant, which was decreed ex parte and which was later set aside. The plaintiff No. 1 was a lecturer in Geography Department at Allahabad University and she along with other unscrupulous elements wants to grab the property, which belonged to him or the defendant.
4. In the replication the plaintiff reasserted the case taken by her and denied the allegations made in the written statement. She asserted that Dr. Srivastava after obtaining decree of divorce married her and since her marriage was performed after the decree of divorce she was a legally wedded wife. There was no adjudication in the aforesaid judgment regarding the status of plaintiff as legally wedded wife as that was not in issue. In fact, she was not a party to it. It was asserted that the intention of late Dr. M. K. Srivastava to bequeath all his assets is abundantly clear by the execution of the registered gift-deed giving aforesaid property at Thornhill Road to her. It was further stated that after her marriage she gave birth to a female child (plaintiff No. 2) out of the wedlock with him. The allegation about contributions having been made by the father of the deceased towards construction of the house and purchase of land at Thornhill Road was denied. On the contrary, she alleged, that she contributed huge amount towards its construction. The father of the deceased not only knew about her marriage but he actually performed Sagun when she visited her in-laws at Lucknow after her marriage. He even regularly visited the Nazreth Hospital when she gave birth to a daughter and various photographs taken show his presence along with her, Dr. M. K. Srivastava and her daughter, Khusboo. The said plot of land was said to have been purchased by Dr. M. K. Srivastava after taking loan from L.I.C. policies and from Triveni Housing Co-operative Society. The entire expenditure in the construction was contributed by Dr. M. K. Srivastava and the plaintiff No. 1 which would be evident from the bank account maintained by the deceased and the plaintiff, A part of the loan for construction of the house was.....taken from the University from the Provident Fund account of the deceased and of the plaintiff.
5. Initially, two issues were framed which are quoted hereunder : --
' 1. Whether the document dated 26-4-1986 alleged to be the Will was validly and duly executed by Dr. M. K. Srivastava ?
2. Whether the plaintiff is entitled to the Letter of Administration on the basis of the Will annexed with the application for grant of Letter of Administration ?'
Subsequently, a supplementary counter affidavit was filed by the defendant asserting that her husband was infatuated and fell in deep love with the plaintiff and was completely under her thumb. On account of this the plaintiff colluded with her husband to obtain a fraudulent divorce decree on false allegations by suppressing summons and notices to achieve marriage. The alleged Will and gift are both result of undue influence over the deceased In the supplementary rejoinder affidavit the plaintiff denied the allegations made therein and further averred that Dr. M. K. Srivastava executed the documents out of his own free-will. In view of the aforesaid on the request of the parties an additional issue was also framed on 30th November, 1987, which is quoted hereunder : --
'3. Whether the alleged Will dated 26th April, 1987, has been obtained by undue influence or not ?'
It is on the aforesaid three issues parties led evidence by filing documentary evidence and also through oral testimony including the evidence of the expert. The plaintiffs' expert concluded by examining the disputed signature on the Will with admitted signatures on the Vakalatnama of the aforesaid revision that the two signatures tally and thus the disputed signature on the Will is that of Dr. M. K. Srivastava, deceased, who is alleged to have executed the said Will. On the other hand, expert of the defendant shows some discrepancy between the aforesaid signatures and thus concluded that the disputed signature on the will is not that of the deceased During oral testimony certain objections were raised regarding admissibility of certain documents, which were produced during the course of the cross-examination of the witnesses of the parties. Some of the documents were exhibited, which were subject to objection and other documents where not exhibited though permitted to be produced for cross examination which were to be exhibited subsequently subject to objectioa
6. On this learned counsel for the parties were heard on the last date of argument. Learned counsel for the plaintiff Sri K. M. Sinha, initially confined his objection to Exts. D-7 and D-8 which in effect are thesis and the photographs respectively. However, he did not press his objection and in view of this the said two documents already exhibited shall be treated to be a document properly exhibited and the earlier objection, if any, would be treated to have been overruled.
7. Sri Vishwanath Pandey, learned counsel for the defendant made an objection to paper No. A-37 dated 11-4-1985 and A-38 dated 10th December, 1985, which are photocopies of the letters written to the Nazul Department, Nagar Mahapalika, Allahabad. The argument was that photocopy of a public document cannot be filed and it is the certified copy which is admissible. Since these were letters written by the plaintiff to the Nazul Department on which endorsement was made by the deceased Dr. M. K. Srivastava and filed in the Nazul Department the photocopy could not be admissible. Learned counsel for the plaintiff did not serioulsy contest the objection. The correct legal position is that since these two documents are alleged to have been filed in the Nazul Department in the Nagar Mahapalika it became a public document and since certified copy of the same has not been filed they cannot be exhibited. Accordingly, paper No. A-37 and A-38 are inadmissible and cannot be exhibited.
8. Initially, argument was raised by the learned counsel for the parties that these documents had not been filed along with list of documents filed at the time of settlement of issues, they cannot be permitted to be filed while a witness was being cross-examined. The objection raised by the parties is unsustainable. Order XIII, Rule 2, C.P.C. refers that no documentary evidence in the possession or power of any party which should have been filed but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause has been shown to the satisfaction of the court for its non-production. Nothing in sub-rule shall apply to a document produced for cross-examination of the witnesses of the other party. Thus, under Order XIII, Rule 2, Sub-rule (2)(a) permits a document to be produced for the cross-examination even though the document has not been produced earlier. Thus, the objection of the parties cannot be accepted
9. Since Issue No. 1 and the additional issue deal with the question whether the Will was validly and duly executed and if executed was it obtained by undue influence or not is a question which could be decided under the common head
ISSUE NO. 1 AND ADDL. ISSUE NO. 3.
10. From the aforesaid facts and on the evidence on the record it is revealed that the first marriage of the deceased Dr. Srivastava took place in 1979 and out of the said wedlock Shailendra Ranjan (son) and Km. Shruti Ranjan (daughter) were born. An ex parte divorce decree was obtained on 22nd September, 1984 and second marriage with Smt. Manorama Srivastava, plaintiff, took place on the 15th November, 1984 and then on 25th April, 1985, the aforesaid divorce decree was set aside. In revision, the order setting aside the ex parte decree was stayed on the 18th July, 1985, and on 31st January, 1986, daughter Khusboo, plaintiff No. 2, was born from the second marriage out of the wedlock with Smt. Manorama Srivastava. Then on 26th April, 1986, the Will was executed and on 2nd June, 1986, a registered gift deed was executed in favour of plaintiff No. 1 of the house at Thornhill Road and then on 15th November, 1986, Dr. Srivastava died and the revision in terms was decided on 7th January, 1987. It is significant from the aforesaid facts that the impugned Will was executed after the setting aside of the ex parte divorce decree. The case of the defendant is that the Will was never executed but a got up document in the alternative even if it was executed it was obtained by undue influence. For this arguments were advanced on behalf of both the parties for and against.
11. The plaintiff's contended that the Will was executed by complying with all the formalities laid down under law. The executor executed it with sound mind and with full consciousness. The defence case that it was never executed is totally false. This plea has been taken only to grab the property against the desire of the testator.
12. The plaintiff in order to prove the will examined Sri. R.N. Srivastava (P.W. 2) and Sri Raghunath Prasad Srivastava (P.W. 3), who were attesting witnesses. P.W. 2 Sri R.N. Srivastava deposed that he is the Deputy Chief Engineer (Research and Development) in the Indian Telephone Industries. He passed M.Sc. (Tech) from Allahabad University. He stated that he knew the deceased Dr. M.K. Srivastava since his student days when Dr. Srivastava was also a student. Since before three days of the execution of the will when the deceased met him he requested him to come to his house for signing a document and on his request he reached on the said date in the evening at about 7 p.m. He found both Dr. M.K. Srivastavaand anotherperson who later was disclosed to be Sri Raghunath Prasad Srivastava Advocate (the other attesting witness) sitting there. Later a paper was handed over to him which was said to be a Will which he cursorily went through. Thereafter, Dr. Srivastava, the testator, signed on the said document before him, which was followed by Sri Raghunath Prasad Srivastava, who had also signed before him and then finally he signed over it. The witness was shown Ex. P-18 (the original Will) and he after seeing the same stated that it is on this document he signed. After seeing the said document he recognised and confirmed the signature of Dr. M.K. Srivastava, testator, and that of Sri Raghunath Prasad Srivastava, the other attesting witness along with his own signature.
13. P.W. 3 Sri R.P. Srivastava was the other attesting witness. He stated that he is an advocate of this court and was enrolled in the year 1962. He knew Dr. Srivastava since 1967 when he met him at the house of Sri Ajit Kumar Advocate and since thereafter he has been meeting him. He further stated that Dr. Srivastava came to his house on Monday and requested him to come to his house on Saturday for signing a document. Accordingly, when he reached his house on the 26th April he found Dr. Srivastava alone. Later, another person came, who was introduced to him as Sri R.N. Srivastava (the other attesting witness). Later, he took out a paper from his file and gave it to him which he read it cursorily. While giving the said document Dr. Srivastava told him that it is his Will which he has executed. Thereafter, on the said Will Dr. M.K. Srivastava signed which was followed by his signature and finally by the signature of Sri R.N. Srivastava (P.W. 2). The witness was shown the original Will (Ext. P-18) and after seeing the same he asserted that it is this document on which the testator deceased Dr. M.K. Srivastava, he and Sri R.N. Srivastava signed. He after perusing the signature on it proved his and the signature of the testator and the other attesting witness.
14. Section 67 of the Indian Evidence Act speaks about proof of signature and handwriting of person alleged to have signed or written document, which is produced by a person who has been the said person signing before him. Section 68 speaks about attestation of the document executed if required under law. Section 63 of the Indian Succession Act is regarding execution of the Wills which lays down that every testator shall sign or shall affix his mark to the Will, and such a Will shall further be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will Thus, the testimony of P.W. 2 Sri R.N. Srivastava and P.W. 3 Sri R.P. Srivastava has complied with the provisions of Sections 67 and 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act to prove the signing of the Will by the testator in their presence and it being attested by the said two witnesses. This testimony if otherwise not found to be unreliable, which I shall be dealing subsequently, would in terms prove the signing of the Will by the testator in their presence.
15. It was argued on behalf of the plaintiff that there was no suspicious circumstance or unnaturalness about writing of the Will by Dr. M.K. Srivastava and, thus if the attesting witnesses prove the Will the question of the Will being forged does not arise and it is not disputed that Dr. M.K. Srivastava was of sound mind and there was no such ailment as to cast any doubt on the mental capacity of the testator. Thus, attesting witnesses prove the signature of the testator then the Will stands proved.
16. The proof of Will has always been the topic of discussion by the various courts in large number of judicial pronouncements. True legal position in the matter of proof of the Will has been dealt with precision in the case H. Ventakachala Iyengar v. B.N. Thimmajamma : AIR1959SC443 , the relevant portion of which is quoted below : --
'20. or para 19 ..... Ed. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same inquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
21. or para 20 ..... Ed. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounded case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature the condition of the testator's mind may appear to be very feeble and debilitated, and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator the dispositions made in the will may appear to be unnatural impropable or unfair in the light of relevant circumstances, of, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspiciouns should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy, and, unless it is satisfactorily discharged, courts would be reluctant to treat the documents the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution ofthe will propounded, such pleas may, have to be proved by the caveators, but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.'
17. The question which remains to be decided and which I shall be dealing with subsequently, is the main argument of the defendant about the surrounding suspicious circumstances on the basis of which it was urged that the execution of the Will could not be accepted. It is the later portion of paragraph 19, quoted above, which is the main foundation on which the defendant has built up his case for not accepting the execution of the Will.
18. The second leg of argument on behalf of the plaintiff was that on additional issue of undue influence there is no evidence on the record that the said Will was obtained by undue influence. Any transaction could be said to be vitiated on account of undue influence when it could be proved that one of them was in a position to dominate the will of the other and he used such a position over the other in order to obtain an unfair advantage for him over the other. Unless it is proved that the person against whom allegation of undue influence is made was in dominating position and further that he has obtained unfair advantage his proof of document would not vitiate on account of that. It is relevant on the doctrine of undue influence, the law is very well settled as laid down by the Supreme Court in Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd Karnal : [1964]1SCR270 . The relevant portion is quoted below : --
'A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other. It is manifest that the conditions have ordinarily to be established by the person seeking to avoid the transaction; he has to prove (a) that the other party to a transaction was in a position to dominate his will and (b) that the other party had obtained an unfair advantage by using that position.
There may arise cases in which even though the burden lies on such a person to prove his case of undue influence he may establish it from admissions made by the other party or his witnesses or from other evidence, and without giving his own testimony.
Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another (1) where he holds a real or apparent authority over the other, or (ii) where he stands in a fiduciary relation to the other or (iii) where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another such proof being furnished either by evidence or by the presumption arising under Sub-section (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But Sub-section (3) has manifestly a limited application, the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will notarise and burden will not shift.'
19. Similarly in Subhas Chandra DasMushib v. Ganga Prasad Das Mushib : [1967]1SCR331 the criterion for the proof ofundue influence was laid down. The relevantportion is quoted hereunder :-- 1
'The court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor the donee such that the donee is in a position to dominate the will of the donor, and
(2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
Merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arises. Generally speaking the relations of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises.'
This decision further lays down that no presumption of undue influence can arise merely because parties were nearly related to each other and further court must come to the conclusion that the relations between the donor and donee is such that donee is in a position to dominate the will of the donor. The principle laid down in this decision would be a guiding factor for deciding the present case under the issue 'Undue Influence' whether the Will could be said to have been obtained by undue influence or not.
20. Learned counsel for the plaintiff in this case urged that since the Will was properly executed by the testator and all the formalities of law being complied with and there being no evidence to show that Smt. Manorama Srivastava was in any way in dominating position to obtain the said Will and in the absence of any evidence of undue influence it cannot be said either that the Will was not executed or if executed was obtained by undue influence. It was further urged that it was very natural for a young man having obtained a decree for divorce for marrying and after having married another girl (plaintiff) and later the said decree being set aside to execute the Will in favour of the second marriage in order to protect her interest. The contents of the Will shows naturalness as it provides not only to the plaintiff and her daughter but also to the son and daughter from the first wife by giving them right in the ancestral home.
21. In Surendra Pal v. Dr. (Mrs.) Saraswati Arora : [1975]1SCR687 , it has been held :--
'The propounder has to show that the will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine, and where the caveator allege as undue influence, fraud and coercion the onus is on him tto prove the same. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence, a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.'
22. In the above case all the formalities required were fully satisfied, it was executed by the testator in a sound disposing mind and was duly attested as required by law and the court held the caveator had failed to prove undue influence in the execution of the Will in favour of his duly wedded wife.
23. It was argued that even applying the principle as laid down in the aforesaid decision it cannot be said that the plaintiff(propounder) even ever took any part in theexecution of the Will. Infact, her case is thatshe came to know about the execution of theWill only after the death of her husband.Thus, question of her taking any dominantpart does not arise. The main reliance raisedon behalf of the plaintiff in the aforesaid caseof Surendra Pal : [1975]1SCR687 is quotedhereunder :--
'There is no presumption of law or fact in this country, that a woman to whom a man is engaged to be married is in a position to dominate his Will so as to override his own real intention. It is not mere influence, but undue influence, which has to be proved by the party which sets up such a case. We think that a plea of undue influence, where set up, is a special plea Section 103 of the Evidence Act places the burden of substantiating such a plea on the party which sets it up.'
24. In Charu Chandra Mukherjee v.Khitish Chandra Mukherjee AIR 1948 Cal351 the observations of Sir J.P.Wilde in 1864-65 I.P. & D. 481 has been quoted, which veryclearly spells out the difference between theinfluence and undue influence, which isquoted below :--
'To make a good will a man just be as free agent. But 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 -- these are all legitimate, and may be fairly pressed on a testator, on the other hand, pressume 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. Importunity or threats, such as the testator has not 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 in which the free play of the testator's judgment, discretion or wishes, is overborne will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led out, not driven; and his will must be the offspring of his own volition, and not the record of someone else's.'
To the aforesaid effect is the decision in Naresh Charan Das Gupta v. Paresn Charan Das Gupta : [1955]1ITR1035(SC) . The relevant portion is quoted below : --
'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 a 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.'
25. In Smt. Chinmoyee Sana v. Debendra Lal Saha, : AIR1985Cal349 reliance was placed by the plaintiff to the doctrine held in the aforesaid case :
'Once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the court to go further to inject its own ethics of what is or not a moral or a fair disposition according to the Court's own standard. The court is not justified while granting probate to consider the terms of the Will for deciding whether the testatix was justified in excluding her sons or daughters-in-law or some of her grandsons and in making some of her grandsons only as legatees when the propounder has been able to prove due execution and attestation of the Will as well as the sound disposing mind of the testatrix.'
25A. Reliance was placed in this Calcutta case on : [1982]1SCR1188 .
26. It was contended that on the basis of the law laid down by various courts it is clear and as is the case in the present case the testator has executed the Will, that he was of a sound disposing mind and he having signed and the document being attested as required under law even if there is deviation to the right of the next of kin could not detract the very fact that the Will was actually executed by him.
27. On behalf of the defendant learned counsel Sri Vishwanath Pandey urged that suspicious circumstances exist in this case and since the Expert produced by the defendant also record a finding that the disputed signature on the Will is not that of Dr. M.K. Srivastava thus unless that suspicious circumstance is removed on the basis of facts and evidence of this case the execution of the Will cannot be said to have been proved by the plaintiff. He thus categorised the suspicious circumstance to show it casts doubt about the execution of the alleged Will.
28. The first such circumstances argued was that the testator did not provide for in the Will to the natural heirs, viz. the son and daughter from the first wife and to his father and to his first wife. For this reliance was placed in the case of Smt. Safi Devi v. MahadeoPrasad : AIR1978All215 in which reliance was placed on the case of Ram Chandra v. Champabai : [1964]6SCR814 . In this, the testator made no provision for the residence of his wife though he left property worth several lakhs and gave only Rs. 40/-per month as her maintenance and made only paltry bequests to his daughters. The Will gives almost the entire property to distant relatives who were neither brought up the testator nor were person who looked after the testator during his declining years.
29. Here the testator gave the Thornhill Road property, L.I.C. policies, bank account, National Savings Certificate, copy-right in his book named 'Electoral Geography of an Indian State', Contributory Provident Fund in the University to the plaintiff (second wife) and divided his share in ancestral property consisting of building and land in village Katra, district Faizabad into four equal parts, viz., to the plaintiff No. 1, plaintiff No. 2, to the son and daughter from the first wife. In this case property has not been given to any distant relation and his share in the ancestral property was given equally to the plaintiffs and issues from the first wife. In the aforesaid decision of Ram Chandra : [1964]6SCR814 (supra) it is recorded that where the propounder himself takes a prominent part in the execution of the will which confers substantial benefits on him that itself is generally treated as a suspicious circumstance, which is not there in the present case. Annexure C-1 discloses total Rs. 66,000/- which is receivable by Dr. M.K. Srivastava on account of contributory provident fund, Group Insurance and Teachers Support Fund, out of which Rs. 26,000/- admittedly has been drawn by the defendant, first wife, thus leaving an amount of Rs. 40,000/- only. Various L.I.C. policies have been referred in Annexure C-2 amounting to Rs. 38,000/- which have been given to the plaintiff, while Annexure C-3 discloses the total bank account of the deceased Dr. M.K. Srivastava amounting to Rs. 1776/- only. In the testimony by the plaintiff P.W. 1 Smt. Manorama Srivastava she has categorically stated that Dr. Srivastava has made L.I.C. policies of Rs. 10,000/- and Peerless policies of the same amount for the son from the first wife and made N.S.C. for Rs. 10,000/- and L.I.C. for the same amount to the daughter from the first wife. Apart from this, it was stated by her that during the lifetime of Dr. M.K. Srivastava he continued to give expenses for the said two children from the first wife including school fees and for the books etc. To this statement, there is no cross-examination on behalf of the defendant and the position seems admitted. The argument raised on behalf of the defendant was that since Dr. M.K. Srivastava went on even paying for the school fees and for the books to the issues of the first wife shows his natural affection towards them even after the alleged second marriage with the plaintiff and thus their exclusion from the property left by him in the Will towards these issues casts a doubt. Further, there is no provision for the first wife and to the aged father and as alleged in the written statement filed by him (since he died during the pendency of this case) that he actually sold some house in order to help his son in purchasing the land at the Thornhill Road and towards construction of the house at Thornhill Road. It is not in dispute that Dr. M.K. Srivastava filed a petition for divorce against defendant on the ground of cruelty andher exclusion from the Will is very natural. Secondly, it is admitted between the parties that the father had ancestral property and merely nonproviding in the Will for the father cannot create doubt at the time of execution of the Will. He was an young man of 39 years of the age and he could never have thought of leaving this world so early. Normally, expectation of a son is that his father will predecease him and it is very rare that the son in his Will includes father as a beneficiary. Thus, contention for the defendant that all this cast doubts cannot be accepted
30. The next suspicion, urged, was the want of registration of the Will. The argument was that though he got the gift-deed registered which was executed few months thereafter, but did not get the Will registered. It is true where Will is registered the burden of its execution and proof.becomes lighter on the propounder. However, it is well known that the Will even if unregistered could be proved to have been executed. However, a gift deed is not admissible in law without its registration. It is significant in this case the time of the execution of the Will is only after the setting aside of the ex parts divorce decree. It is very natural in the mind of a person who is alleged to have solemnised second marriage after obtaining divorce decree and that having been set aside, to protect such wife, so that even if in law she is not recognised as such and on account of his own wrong she is not put into any peril. Once, a husband filed petition for divorce on the ground of creulty as against the first wife and having obtained divorce decree marrying second time and later finding the said decree being set aside in the circumstances it cannot be said that mere non-registration of a Will casts any doubt as to disbelieve the execution of the document. In Basant Singh v. Brij Raj Saran Singh , which was a case where the testator was only 37 years of age but did not provide for anyting to the widow and the Will was not registered it was held there is no unusual about its non-registration. The relevant portion is quoted hereunder : --
'This contention is founded on the absence of any express provision for the widow, in the event of the testator, who was then 37 years old, dying leaving a son, natural or adopted by him during his life. Their Lordships are unable to see anything unusual in terms of the will, nor is it unusual for a will not to be registered.'
31. Next, it was urged that there is difference in the language used in the gift-deed and that used in the Will. It also casts doubt that the Will was executed by the testator. It has not come in evidence as to who has drafted it, while gift deed (Ext. D-3) has been drafted by Sri K.B. Srivastava Advocate and thus difference between the language used in the aforesaid documents could be on account of two different draftsmen. Therefore, this itself could not be said to be such as to cast doubt on the Will
32. It was also urged, even after the death of the husband the plaintiff did not immediately search for the Will, which itself creates a doubt. In this case, Dr. M.K. Srivastava died on 15th Nov. 1986, and it was only about a month she searched for the document when she found the Will lying amongst his papers in the almirah, in view of (this) it could not be urged that any inordinate delay was caused in obtaining the said Will. A feeble argument was also raised that the attesting witnesses not mentioning regarding this Will to the plaintiff also casts doubt. When the Will itself was found by the plaintiff in about a month merely non referring by the attesting witnesses to the propounder of the Will cannot create suspicion of a nature to cast a doubt on the execution of the Will. It was also argued that in spite of one of the attesting witnesses being an Advocate it was not advised for such a Will to be kept under proper care with the District Registrar. It is not in dispute that the Will in question was not registered and merely not keeping the unregistered Will with the District Registrar cannot lead to any suspicion. Normally, a Will is a secret document and is not disclosed even to the beneficiaries and especially in the case where there is litigation pending in the proceedings for divorce with the first wife. Any leakage that the first wife or beneficiary through her are being affected by it might have further worsened the situation and the testator might have feared greater obstacles. It is not very unusual that the many of the beneficiaries come to know about the execution of the Will several months after death of the testator as neither the testator nor the attesting witnesses normally disclose this fact.
33. In the present case, the testator after executing the Will is alleged to have executed the gift-deed and it is possible that the testator in order to secure the interest of the plaintiff and secure her in his lifetime gifted the property which was in addition to the execution of the Will since Will comes into existence only after death and gift during the lifetime. This is normally done not only in order to secure the second wife but to create an atmosphere of confidence for continuance of love and affection and in order to further shelter her when his divorce suit is decided against him.
34. It was also suggested that actually the Will came into force after decision in the aforesaid revision by this court as neither Dr. M.K. Srivastava in revision nor the plaintiff while making the application for substitution after the death of Dr. M.K. Srivastava disclose regarding the said Will. The proceedings in revision were confined to the proceedings for a divorce and there was no occasion for a person to disclose regarding the Will in those proceedings especially in the case where in the said Will nothing was given to the first wife. No prudent person could be expected to disclose regarding the Will in those proceedings.
35. It is true, where execution of the Will is surrounded by suspicious circumstances onus is on the propounder to explain to the satisfaction of the Court before a Will is accepted as genuine.
36. Thus looking to each of the suspicious circumstances as alleged on behalf of the defendant it cannot be said that these suspicions were such which in any way pricks the conscience of the court as to cast doubt about the execution of the Will. On the facts and circumstances of this case and on the basis of evidence on the record. I do not find that these suspicions cast a doubt that it was not executed of his free-will and mind.
37. In the present case in view of the clear evidence that the testator had signed the Will and both the attesting witnesses testified that the said signature was made before them and they themselves having signed as attesting witnesses and further the statement that at the time of execution the testator was of sound mind which is not even disputed by the defendant and the defendant having failed to show any such suspicion as to cast any doubt regarding execution of the document the argument on behalf of the defendant that it was not executed by him cannot be accepted The mode of proving Will does not differ from that of proving any other document except as to its attestation in accordance with Section 63 of the Indian Succession Act and that formality having been completed to prove the said document and the defendant having failed to show any suspicious circumstance then subject to the acceptance of the testimony of the attesting witnesses, which I shall be dealing subsequently, it cannot be said that formalities for such proof has not been complied with,
38. Finally, on behalf of the defendant, it was urged that the two attesting witnesses, namely, Sri R.N. Singh (P.W. 2) and Sri Raghunath Prasad (P.W. 3) are unreliable and should not be believed. Regarding P.W. 2 it has been urged that he was not on visiting terms with the deceased and thus he is a chance witness. Secondly, when he was requested by the deceased to come to his house non-discloser by him that it was for the execution of the Will creates suspicion, which is not expected from a friend. Emphasis was made that he even does not know as to how many rooms are there in the Thornhill Road house. He has not even been told as to who was the drafter or Typist of the said Will. P.W. 2 R.N. Srivastava is the Deputy Chief Engineer (Research and Development) in the Indian Telephone Industries. He is a person of status. He came to know Dr. M.K. Srivastava since his student days though he admitted that he was not on the visiting his house (sic). Then a witness not able to tell as to how many rooms are there in a house of a friend and the testator not disclosing at the time when he requested him to come to his residence and the names of the drafter and typist not being disclosed are not such circumstances on which testimony of witness could be disbelieved. No suggestion has been made as to why be would tell a lie. Nothing has been suggested as to why he will depose to support the plaintiff. Apart from closeness through deceased no suggestion made of his being close to the plaintiff. He has very clearly stated that when he came to the house as requested by Dr. M.K. Srivastavaon the 26th April, 1986 a document was shown by him which he cursorily went through and on the said document it was first signed by Dr. M.K. Srivastava followed by Sri R.P. Srivastava the other attesting witness, P.W. 3, and then by him. In spite of long cross-examination, the witness stood by the said statement and nothing had been brought which could belie his testimony.
39. The other attesting witness was Sri Raghunath Prasad Srivastava (P.W. 3). An attempt was made to show that his statement that he came to know Dr. M.K. Srivastava in the house of Sri Ajit Kumar Advocates in 1967 in Tagore Town is false since Dr. Srivastava was not living in Tagore Town at that time but was living in A.J. Jha Hostel in the Allahabad University and thus his testimony should be disbelieved. Reference was made to the testimony of D.W. 2 Sri R. K. Singh, Superintendent, A.N. Jha Hostel, who stated that as per record in the hostel Dr. M.K. Srivastava was admitted in the hostel as a student in July, 1963 and he continued till 1967-68. He has admitted that the hostel fee for a year is taken in advance and when a student finishes his education or obtains service he cannot live in the said hostel. When the witness was shown the degree of M.A. of Dr. M.K. Srivastava he admitted that he did his M.A. in 1967 session of the Unversity ends in May. He further stated that the session of 1967-68 ended in May 1968. Thus, session of students ends in May and the possibility is even if Dr. M.K. Srivastava completed his M.A. degree in 1967 which is also admitted by the defendant Smt. Saroj Srivastava then there is possibility that he ceased to be a student after May, 1967. A suggestion was made in the cross-examination of t his witness that he actually got service, but the witness denied that since there is nothing on the hostel record to show that. The main reliance was made that for the year 1967-68 the then Superintendent has entered by his own hand that M.K. Srivastava was a student in M.A. (Geography). It cannot be denied that even if it could be said that Dr. M.K. Srivastava continued in the said hostel after May, 1967 in 1967-68 session he could not be a student of M.A (Geography) after 1967. These entries as stated by the witness might have been made by the Superintendent of the hostel or even the testimony of D.W. 2 Sri R.K. Singh might show the possibility of Dr. M.K. Srivastava being there in the hostel, but the said evidence is not such as to prove that Dr. Srivastava continued in the hostel even after completion of studies after obtaining the said degree. He admitted (he) got service initially as a temporary lecuturer in the C.M.P. Degree College and later in the University. The possibility of his shifting to the Tagore Town in 1967 cannot be ruled out. However, even if it could be said that some doubt is cast that Dr. Srivastava continued to live in the A.N. Jha Hostel for some time after May, 1967 but in the absence of cogent evidence and only on the basis of entry in the Hostel register the possibility of his having shifted in Tagore Town cannot be ruled out. The testimony of P. W. 3 Sri Raghunath Prasad Advocate, that he having met Dr. M.K. Srivastava at the residence of Sri Ajit Kumar Advocate in Tagore Town and Dr. Srivastava also living in Tagore Town in 1967 cannot be said to be such as to cast aspersion on his testimony.
40. Before a witness is disbelieved on a fact it must be based on clear proved evidence that he has deposed a fact which is contrary to either admitted fact or proved fact which is in conflict with the testimony given by him. Mere casting aspersion on the possibility of a fact is not sufficient to disbelieve his testimony specially where deposition is made of a fact which is of a period more than 21 years back. The witness has very clearly stated that the was called by Dr. M.K. Srivastava at his residence and accordingly he reached there and there he was shown the copy of the Will, which he cursorily looked into and passed it back to the testator who signed before him which was followed by his own signature and then the signature of the second attesting witness P. W. 2 Sri R.N. Srivastava. In spite of lengthy cross-examination no discrepancy has been pointed out as to cast any doubt on the veracity of statement made by him.
41. Both the aforesaid two witnesses have deposed the fact in a natural way and there has been no contradiction even after long cross-examination and there is nothing in the testimony as to disbelieve their version regarding execution of the alleged Will. Argument was raised on behalf of the defendant that they were the chance witnesses. Firstly, the argument is unsustainable. Admittedly, both the witnesses were his friends, long known, one since the student days and the other since 1967, and having called them to be attesting witnesses of the Will it cannot be said that they were the chance witnesses. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee : AIR1964SC529 it has been held that merely the attesting witness is a chance witness is no ground to disbelieve their evidence. The relevant portion is quoted below : --
' The mere fact that the attesting witness to a will happen to be chance witnesses is no ground for disbelieving their evidence. It may be that it is more usual for witnesses to be called when a person is intending to execut a will; even so there is nothing impossible in advantage being taken of the accidental presence of witnesses in this connection.'
42. The next argument was in view of the fact that the hand-writing experts produced both by the plaintiff and the defendant have differed; the plaintiff's expert supporting her case that the disputed signature on the Will is that of Dr. M.K. Srivastava while the defendant's expert supporting the case of the defendant that it is not the signature of Dr. Srivastava, the court should examine and compare the signature between the admitted and the disputed signatures to come to a conclusion whether they are the signature of Dr. M.K. Srivastava or not.
43. Before dealing with the question as urged by the learned counsel for the defendant it is necessary to refer to the two important decisions of the Supreme Court in this regard
44. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee : AIR1964SC529 (supra) it was held : --
'The expert evidence as to hand-writing is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before, acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.'
To the same effect is the decision in Fakhruddin v. State of Madhya Prasad AIR 1967 SC 1326, in which it was held that the direct evidence of signing by testator which has been seen by the attesting witness is the best evidence of actual execution of the document.
45. In the present case, Sri M.M. Sen Gupta (P.W. 4) on examination of the disputed signatures on the Will with that of admitted signatures on the Vakalatnama in the aforesaid Civil Revision and also on the examination of signatures of Dr. M.K. Srivastava on application for withdrawal from Provident Fund account marked as D-7 came to the conclusion that the signature on the Will dated 26th April, 1986, (Ext. P-18) has been written by the writer of the sample signature, viz. by Dr. M.K. Srivastava. He also deposed as a witness (P.W. 4) and supported his report and reiterated what he stated in his report. He stated that even the second signature on the Vakalatnama the photograph of which was taken by the expert from the original file of the Civil Revision was that of Dr. M.K. Srivastava. There is nothing in the cross-examination to distract from the veracity and the opinion of the expert. He has further stated that while examining the two signatures I found that the writer writes in different style he further found that the two signatures on the Vakalatnama contain the same writing and characteristics and qualities and that it is written by the same person in the same sitting. Similarly the defendant examined Sri Pradeep Kumar Tripathi, who supported his report (Ext. D13). The witness has stated that he has compared the admitted and disputed signatures and has further admitted and his report was to the same effect that there are variations even in the admittedsignatures. However, according to him, the variations found between the admitted signatures are natural ones. In the cross-examination on the sggestion being made he has stated 'I do not think so that there are more variations in the admitted signatures than the disputed one.'
46. Even from reading the testimony of the statements of the defendant's hand-writing expert it is revealed that the writer has certain variations in his writing though according to the said expert the variations in the admitted signatures are natural than the disputed ones.
47. It is in the light of these two conflicting expert opinion argument was raised by the learned counsel for the defendant that on comparison of the two signatures viz. admitted and the disputed signatures it would be revealed that there are clear difference between the two for which a number of anomalies were tried to be shown. Firstly, it is pointed that in the disputed signature in the word 'M' it starts with little tremour before actually 'M' is written, but there is no tremour or bent in the admitted signatures. In the photocopy of the signatures of Dr. Srivastava in Exts. A-1 and A-7 there is no two bends, nor there is any tremour in A-7. Then, it was urged that the bend in 'S' in 'Srivastava' in the disputed signature is differently written than the 'S' in the Vakalatnama. It is significant that on the Vakalatnama two signatures are written, one similar to 'S' written in the disputed signatures and the other in a different style. It is on this basis emphasis was made that there is difference between the two. However, once the defendant herself called for to get the signature of Dr. M. K. Srivastava from the Vakalatnama in the said revision for the purpose of comparison with the disputed signature the two different styles on the vakalatnama could not be said to be not the admitted signature of the writer. It merely indicates that the writer was in the habit of signing differently the word 'S' while writing 'Srivastava'. The counsel for the defendant made some attempt to show similar dissimilarity between the two signatures in order to show that there are differences in the style, the slant in writing so as to create a doubt between the admitted and the disputed signatures. The differences pointed out by the learned counsel for the defendant were not such as to cast a doubt except for showing that the writer had different style of writing and there were variations in his writing and his signature on different occasions. However, variations were not such as to show any difference between the admitted signatures and disputed signatures.
48. I find from the report of P.W. 4 that he examined it after photo enlargments of the signatures both of disputed and admitted. The photographs were taken from the original in the Court premises on the 28th March, 1988, under the orders of this Court. He has come to the conclusion on comparison of the aforesaid signature that the writer (Dr. M. K. Srivastava) writes with difference and variations on the formation of some letters and words or combination of letters. He, in fact, compared the formation of letter 'S' that in the same document there is difference from which even in the formation of the letter 'S' he has also come to the conclusion that the writter employs greater flow and also somerimes less flow in the production of his signature. He has also given various reasons on the basis of examination of various letters both admitted and the disputed signatures for drawing an inference that the disputed signature was of the same person, who has signed the admitted signature, namely, the testator. On perusal of the report submitted by him and on the basis of his testimony in the Court in support of his report I do not find anything to discredit his testimony.
49. Coming to the expert produced by the defendant on examination of his report and his testimony in Court it is revealed that there are variations in the writing of the testator even in the admitted signature. But what has been said is that the variations in the admitted signature is natural while variations in the disputed is not natural. Thus, his testimony at the most could be said to cast doubt even if accepted in toto, but on that basis inference with confidence cannot be drawn that the disputed signature was not of the testator. Even on the examination of two admitted signatures on the same Vakalatnama it is revealed that even by bare eyes it appears that they have been written in two different styles with the variations for which even lenses are not necessary. Once, it is admitted that the writer was in a habit of writing in various styles and there are variations even in formation of letters there is nothing to disbelieve the testimony of the plaintiffs expert. It is also very significant when there is forgery of signature of a person the natural instinct and tendency found is that the forger always makes his best effort to closely immitate both in shapes and formation of letters and words from the admitted signature of the person whose signature is sought to be forged The natural feelings in the mind of forger is to reproduce the letters as well as exactly in shape, formation and size to be that from the admitted signatures. The forger would not make variations in signatures. In the present case, since it is found by both the experts that there are variations in the disputed signatures of the testator and this coupled with further evidence that testator was in the habit of writing letters which varies in the formation and shape and also the admitted position being that even on bare examination of the two admitted signature on the Vakalatnama showing even different forms of letter 'S' being written in his two signatures indicates strongly in favour of the report and the testimony given by P. W. 4 Sri M. M. Sen Gupta that the writing on the alleged Will was that of the testator. Thus, on the basis of perusal of evidence of the expert, as aforesaid, I come to the conclusion that the signature on the disputed Will was that of the testator Dr. M. K. Srivastava.
50. Coming to the construction of the Will. The testator's desire so far as legally possible with his prejudices and passions, if any, should be taken account of. The elimination of some of the relations from the Will on account of some prejudice could not be a ground for doubting the testator's executing the Will. He is at liberty to omit as he desires even though reasons may be bad and not acceptable. It is dangerous to cast doubt on the execution of the document only on account of circumstances that some of the natural heirs has not been given any property. Reaction of each individual on account of circumstances always varies from man to man. It may be a prudent man while disposing of his property disposes it with prudent conscience having love towards all, but disposition by a non-prudent man and by a person who is unreasonable, reactive could not deviate or take away his right to give the property to one whom he likes. It is thus very dangerous to disbelieve or to draw an infernece of suspicion only on the basis of disposal of property in certain manner. A testator is entitled to express his personal whims, even though erroneous, even for divesting from a property of a legitimate person may be on account of groundless object.
51. In order to draw an inference regarding the execution of a Will the Court must always place itself in the position of a testator and after examining the various states of things in which the testator was placed and inference on facts should be drawn. On law of Wills by Mantha Ramamurthi, 2nd Edition, p. 64. what should be the duty of the Court is referred to which is quoted hereunder : --
'The first duty of the Court is to take note of the setting in which the Will was made by the testator. This is also known as the 'armchair' rule. In other words, so far as permitted by evidence, the Court should place itself in the testators arm-chair at the time he executed the Will and find out how the testator regarded the affairs and what feeling he had, in respect of the persons he was benefiting or disinheriting: The Court has then to ascertain if the testator was in a position to understand the nature of the act and its effects, the extent of the property which he was disposing of, and whether he was able to apprehend and appreciate the claims to which he had to give effect.
The Court should be astute in ascertaining if any disorder of the mind had poisoned his affections, perverted his sense of right, or prevented the exercise of his natural faculties. If the Court is satisfied that the Will isgenuine, it is bound to give effect to it even if some of its provisions are extraordinary, unnatural unreasonable, or iniquitous. In so far as the Will is a legal declaration of a man's intention as to how he wants the disposition to be made of his property after his death his declared intention must be given effect to, unless forbidden by law.'
52. Examining from this point of view on the facts of this case in accordance with the evidence led by the parties it is not indispute that the testator filed petition for divorce on the ground of cruelty as against his first wife Smt. Saroj Srivastava. This fact apart from the fact that the ex parte decree of divorce was set aside shows testator's strong disliking for her; further he re-marrying the plaintiff Smt. Manorama Srivastava after the ex parte decree of divorce was obtained and further the fact that she gave birth to a female child shows strong affinity of the testator at the relevant time. Further fact that the Will was executed only after the ex parte decree of divorce was set aside is also very significant. A person having strong affinity for a person at a time having been completely dislodged by setting aside of the divorce decree and further she being placed in a completely insecure position and in the state of uncertainty in future it is but natural for a man to execute the Will in order to give complete protection to her and the present fact being identical to this I do not find any unnaturalness in the execution of the Will. On the contrary, the facts speak for themselves that such a Will clearly would have been executed by the person in which the testator was placed.
53. Similar attempt was also made, in the alternative that the Will was obtained on account of the undue influence exercised by Smt. Manorama Srivastava over the testator. From a perusal of evidence on the record I do not find any evidence led by the defendants to prove the exercise of undue influence under law over the testator. Apart from absence of evidence the law is well settled in order to draw an inference of undue influence, the person in whose favour the Will was obtained should be shown to be in the dominant position over the testator. In the aforesaid case of Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Kamal : [1964]1SCR270 (supra) the Supreme Court has held that in all cases in which the party pleading relies on undue influence the particulars of such undue influence should be stated in the pleading and a vague or general plea can never serve the purpose. Thus, the party pleading must, therefore, be required to plead the precise nature of influence exercised.
54. In the present case, I do not find any such precise pleading by the defendant. Further, before an inference of undue influence is drawn there must be evidence on the record, which the party pleading has proved that undue influence was exercised by the person who was in the dominant position. On the facts of the present case, there is nothing on the record to show that Smt. Manorama Srivastava was in a dominant position over her husband and on account of that she obtained the said Will. Mere love and affection or natural affinity cannot
constitute a ground of undue influence about the latter. Thus, I come to the conclusion that the defendant has failed to prove that any undue influence was exercised by the plaintiff over the testator in obtaining the said Will.
55. In view of the aforesaid findings and perusal of the evidence on the record 1 come to the conclusion that the Will dated 26th April, 1986, was validly and duly executed by Dr. M. K. Srivastava and the said Will was not obtained by undue influence.
Issue No. 2
56. In view of the aforesaid finding that the Will was duly executed by Dr. M. K. Srivastava and plaintiffs being beneficiaries under the Will are entitled for a grant of letters of administration on the Will dated 26th April, 1986 subject to the condition that the plaintiff pays ad valorem court-fee duty payable on the valuation of the property.
57. In view of the finding on the aforesaid issues, the suit of the applicant is decreed with costs and the applicant is granted letters of administration over the property mentioned in the Will dated 26th April, 1986. Subject to the payment of ad valorem Court-fee duty payable on the valuation of the property.