# 68T SURENDRA PAL & ORS v. SARASWATI ARORA & ANR

- **Citation:** [1975] 1 S.C.R. 687
- **Court:** Supreme Court of India
- **Decided:** 1974-08-09
- **Case number:** Civil Appeal No. 1153 of 1971
- **Bench:** P. Jaganmohan Reddy, M. H. Beg, A. Alagir!Swami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/68t-surendra-pal-ors-v-saraswati-arora-anr-6225
- **Pages:** 16

## Headnote

Will-Bequest of entire property in favour of second wife to th_e exclusion·
of children
by the first wife and mother of testator-Presumption of undue"
influence, if can be drawn .
In April, 1959, the testator's wife died leaving behind four daughters and a son.
Two of the daughters were married to persons in affluent circumstances. The son'
was not living with his father at the time of his death and the other two daughters ·
were living with the brother. The relations between father on the one hand, and
the son (the first appellant) and the two daughters on the other, were strained and·
bitter, and in fact, there was positive hostility between them. The testatar even'
apprehended danger to his life and he filed criminal complaints against the· son.
Jn September, 1960, the testator advertised for a wife in a newspaper and the mother
of the first respondent replied to it, on behalf of the 1st respondent, and:asked for
particulars. But even before the testator and the 1st respondent met the testator·
entered into an agreement with the 1st appellant, in October,, 1900, and in that
agreement, he made provision for the maintenance and marriage of one: daughter
and also provided for the maintenance and residence of the other daughter though
no mention was made about her marriage. There was also no provision for the -
maintenance of the mother of the testator who was then living with him. After
some correspondence between the testator and the relations of the first respondent
the parties met and the testator and the first respondent were married on February
7, 1961. On the very next day, the testator executed a will, by which he bequeathed
his entire property to his wife, the 1st respondent. The will was attested by the brother·
of the 1st respondent and a friend. The testator did not make any provision for the·
f!Iaintenance of his mother and the marriage of his youngest daughter. The testator
hved for three years thereafter and died in January, 1964. The 1st respondent filed
an application for probate of the will and the 1st appellant contested the applica~
tion. The trial eourt granted probate to the 1st respondent and the judgment was
confirmed in appeal by the High Court.
Dismissing the appeal to this Court,
HE~D : The .will was genuine and all the formalities that were required were
fully satisfied as it was executed by the testator in a sound disposing state of mind
and was duly attested as required by law.
(1) The propounder of a will 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 !lature and effect of the dispositions, that he put his signature to the testament of hts free will and that he had signed it in the presence of two witnesses who
attested i~ in his presence and in the presence of each other. Once these elements.
are estabhshed the onus resting on the propounder is discharged. If the caveator·
alleges undue influence, fraud and coercion the onus is on him to prove the same~
If the caveator does not discharge this burden probate of the will must necessarily
he 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. A man may act foolishly
and even heartlessly but if he acts with full comprehension of what he is doing the
Court will not interfere with the exercise of his volition.
There may however l»
cases in which the execution of the will is surrounded by suspicious circumstances
such as where the signature is doubtful, the testator is of feeble mind or is overawed by powe~ul minds interested in getting his property or where, in the light of·
the relevant circumstances, the dispositions appear to be unnatural, improbable
and u_nfair; or; where there are other reasons for doubting that the dispositions in
the will were not the result of the testator's free will and mind. In all such cases
the suspicious circumstances must be reviewe

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68T
SURENDRA PAL & ORS.
v.
SARASWATI ARORA & ANR.
August 9, 1974
[P. JAGANMOHAN REDDY, M. H. BEG AND A. ALAGIR!SWAMI, JJ.]
Will-Bequest of entire property in favour of second wife to th_e exclusion·
of children
by the first wife and mother of testator-Presumption of undue"
influence, if can be drawn .
In April, 1959, the testator's wife died leaving behind four daughters and a son.
Two of the daughters were married to persons in affluent circumstances. The son'
was not living with his father at the time of his death and the other two daughters ·
were living with the brother. The relations between father on the one hand, and
the son (the first appellant) and the two daughters on the other, were strained and·
bitter, and in fact, there was positive hostility between them. The testatar even'
apprehended danger to his life and he filed criminal complaints against the· son.
Jn September, 1960, the testator advertised for a wife in a newspaper and the mother
of the first respondent replied to it, on behalf of the 1st respondent, and:asked for
particulars. But even before the testator and the 1st respondent met the testator·
entered into an agreement with the 1st appellant, in October,, 1900, and in that
agreement, he made provision for the maintenance and marriage of one: daughter
and also provided for the maintenance and residence of the other daughter though
no mention was made about her marriage. There was also no provision for the -
maintenance of the mother of the testator who was then living with him. After
some correspondence between the testator and the relations of the first respondent
the parties met and the testator and the first respondent were married on February
7, 1961. On the very next day, the testator executed a will, by which he bequeathed
his entire property to his wife, the 1st respondent. The will was attested by the brother·
of the 1st respondent and a friend. The testator did not make any provision for the·
f!Iaintenance of his mother and the marriage of his youngest daughter. The testator
hved for three years thereafter and died in January, 1964. The 1st respondent filed
an application for probate of the will and the 1st appellant contested the applica~
tion. The trial eourt granted probate to the 1st respondent and the judgment was
confirmed in appeal by the High Court.
Dismissing the appeal to this Court,
HE~D : The .will was genuine and all the formalities that were required were
fully satisfied as it was executed by the testator in a sound disposing state of mind
and was duly attested as required by law.
(1) The propounder of a will 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 !lature and effect of the dispositions, that he put his signature to the testament of hts free will and that he had signed it in the presence of two witnesses who
attested i~ in his presence and in the presence of each other. Once these elements.
are estabhshed the onus resting on the propounder is discharged. If the caveator·
alleges undue influence, fraud and coercion the onus is on him to prove the same~
If the caveator does not discharge this burden probate of the will must necessarily
he 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. A man may act foolishly
and even heartlessly but if he acts with full comprehension of what he is doing the
Court will not interfere with the exercise of his volition.
There may however l»
cases in which the execution of the will is surrounded by suspicious circumstances
such as where the signature is doubtful, the testator is of feeble mind or is overawed by powe~ul minds interested in getting his property or where, in the light of·
the relevant circumstances, the dispositions appear to be unnatural, improbable
and u_nfair; or; where there are other reasons for doubting that the dispositions in
the will were not the result of the testator's free will and mind. In all such cases
the suspicious circumstances must be reviewed and satisfactorily explained by the
propounder before the will is accepted as genuine. Again, in cases where the propo\Jnder has himself taken a prominent part in the execution of the will which.
688
SUPREME COURT REPORTS
[1975] 1 S.C.R.
confers on him a substantial benefit, that is itself a suspicious circumstance which
he must remove by cle3.r and satisfactory evidence.[692 C-E; 693 A~C]
H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors; [1959] Supp. 1 S.C.R.
426, and Rani Purnima Devi and Anr. v. Kumar Khagendra Narayan Dev & Another
[ 1962] 3 S.C.R. 195, followed.
Moti/al Hormusjee Kanga v. Jamsetjee 1Iorn111sjee Kanga, A.l.R. 1924 P.C. 28,
applied.
(2) In the present case, the 1st iespondent was merely present at the time of the
execution of the will and did not have anything to do with its execution. In order
to understand what the testator intended and why he intended so, one has to sit
-in his arm chair to ascertain his frame of mind and the circumstances in which he
made the will. After the testator's marriage with the 1st respondent and before
the 1st appel1ant and his two unmarried daughters came to know about the will
they had definitely behaved shabbily and in a very hostile manner to the testator.
The testator was completely ignored at the time of the marriage of one of the daughters and the son and daughters never came to see -him even when he was dying.
The Ist appellant did not take his son to see the grandfather even though the Ist
appellant admitted that his father was anxious to see his grandson. With a family
so hostile towards the Ist respondent, it is but natural for the testator to provide
for his newly wed wife even without her asking him or importuning him to do so.
The 1st respondent was herself a doctor of 13 years standing and there is no evidence
that she was a gold-digger. The correspondence shows that the only consideration
that prevailed between the parties was companionship. There 'vas no suggestion
that the testator was feeble minded or so completely deprived of his power of independent thought and judgment as to faithfully carry out the wishes of the 1st
respondent to whom he became engaged and got married. On the contrary, it
appears that it was he who offered the inducement voluntarily to her.
(3) The reason why he did not provide for the marriage of the youngest daughter might be that he did not think that he would <lie so soon. He must have
thought that he would be able to perform the marriage himself, or he never doubted
that the Ist respondent would not discharge that obligation. The reason for not
providing for his mother might have been that he must have thought that he would
-survive her.
( 4) If an objective and rational deduction of a principle emerges from a deci~
sion of a foreign country rendered on legislative provisions in pari materia \.vith
those of this country and which is applicable to the conditions prevailing in thi5
country, such a decision will assist the court in arriving at a proper conclusion. But
it is dangerous to apply blindly staten1ents of law enunciated and propounded for
meeting the conditions existing in countries in which they are applicable, without
a critical examination of the principles and their applicability to the conditions,
social norms, and attitudes existing in this country, and wihout considering the
background and various other considerations. Apart from general considerations
emerging from the nature of a will and the circumstances which not infrequently
surround its execution there are other matters which are peculiar to the times,
the society and the person making the will and his or her family.
Inferences arising
from relatioruhips between a testator and a legatee are so dependent upon the pe·
culiarities of the society or community to which they belong, their habits and customs, their values, their mores, their ways of thinking and feeling, and their susceptibilities to particular kinds of pressures, influences or inducements, that it is difficult
to reduce them to a general rule applicable at all times and everywhere so as to raise
a presumption of undue influence from a particular type of relationships. In this
country, even to~day a marriage is an arranged affair and even in the instant case
when an advertisement was resorted to by the testator it was the first respondent's
mother who replied. Therefore whatever may be the positi6n in England as to the
presumption of undue influence in the case of parties engaged to be married (such
a presumption is referred to in Halsbury's Laws of England, Vol. 17, p. 681, Art.
311) it would be hardly applicable to conditions in this country. [697 D; 698 A-C,
G; 699 H-700 BJ
(5) Unlike the position in England at the time when the courts recognised the
presumption between a man and a woman engaged to be married the law of evidence
is codified in this country in the Indian Evidence Act. Every presumption, barring
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s. PAL v. s. ARORA (Jaganmohan Reddy, J.)
68 !)
some special ones created by other enactments. has to be related to a provision of
the Evidence Act. The only kinds of relationship giving rise to such presumptions
are those contemplated in s.111 of the Evidence Act. Any other presumption from a
relationship must, to be acceptable, be capable of being raised under s. 114 of that
Act. Such presumptions are really optional inferences from proof of a frequently
recurring set of facts which make a particular inference from such facts reasonable
and natural. The instant case does not fall within s. I 11. The plea of undue
influence is a special plea, and under s. 103 of the Evidence Act, the burden of
~ubstantiating such a plea is on the party who sets it up. [700 B-EJ
(6) There is no proof that the will was executed before marriage. Even if the
date had been altered from 7th Feb. to 8th Feb. it was altered by the testator and he
must have done so because he made a mistake. People often put a wrong datt) and
immediately correct it. Further the evidence of the two attestors which has been
accepted by both the courts, shows that the execution and attestation of the win
was on the same day, namely 8th February. [700 F-GJ
(7) Even if it was executed on 7th February there was nothing to show that it
was executed before the marriage on that day. It is unlikely that the first respondent
would make a stipulation that the property should be bequeathed to her, as she
must have known that a will is ambulatory and a marriage with such a condition
would only beget dissension between the parties. [701 A-BJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1153 of 1971.
Appeal by Special Leave from the Judgment & Decree dated the
30th September, 1970 of the Calcutta High Court in Appeal No. 78 of
1967.
B. Sen, M. K. Banerjee, and B. R. Agarwala, for the appellant.
Y. S. Chitle and P. C. Bhartari, for the respondents.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J. This appealis by special leave against the
grant of a probate of the will of Bhim Sain Arora dated February
8, 1961 in favour of his wife Saraswati. The deceased who had lost his
first wife on April 14, 1959 had advertised in September 1960 for a wife
in the matrimonial, column of Sunday Tribune of Ambala. The advertisement is as follows:
"A widower, renowned merchant desires to marry accomplished and liberal-minded Punjabi Hindu unmarried or issueless
widow from a respectable family of above 30 years age. Write
confidentially to Box No. 47170 Cfo Tribune, Ambala."
The respondent Saraswati aged 35 years a Doctor by medical profession
was also on a look-out for a husband replied on October 4, 1960, not in
her name but purporting to be in the name of Mrs. Puri-her mother.
In this letter a few particulars were called for regarding "the gentleman
in question e.g. age, location, parentage, any issues out of first wife,
education etc." She also asked for clarification of "the exact expectation
by the words "liberal-minded"." This letter was replied to by one AmaJendu Chaudhuri, Personal Assistant to the deceased Bhim Sain on
October 11, 1960. This letter was answered by Puri on December
26, 1960. The correspondence shows that both of them were looking
for partners who conformed to similar requirements. We shall deal
-690
SUPREME COURT REPORTS
[1975] 1 S.C.R.
with the purport of the correspondence at the appropriate place, but
for the present it is sufficient to say that as a result of this correspon-
. dence the respondent Saraswati came to Calcutta with her mother on
January 30, 1961 and stayed with her sister and her husband Colonel
Harish Chandra. Vigh. After perusing the correspondence, Col. V1gh
·rang up Bhim Sain and invited him to come over to his place.
Bhim Sain visited Col. Vigh's place on three successive days, namely,
31st January, !st February and 2nd February, 1961 and had talks with
·saraswati and her family members who were there. On February
2 1961
Bhim Sain invited Saraswati and her people including Col.
·vigh to' have tea at his place on February 3, 1961. At that meeting on
the tea party on February 3, 1961, Bhim Sain and the respondent
agreed to get married on February 7, 1961. Notice under the Special ~ar
·riages Act was given to the Registrar, but since the time was not sufficient
to fulfil the requirements of that Act, this notice was ante-dated and the
marriage took place on February 7, 1961. After the marriage, Saraswati
-went to stay with her husband. On February 8, 1961, Bhim Sain rang
up Col. Vigh and informed him that he would like to go to this place
that evening for executing a will and asked him to get a friend to witness
1t. Accordingly in the evening of February 8, 1961, Bhim Sain went to
·Col. Vigh's place along with Saraswati. There he met one Nelson Das
who was introduced to him as the Purchase Officer of Bridge & Roof
Company. After that Bhim Sain took out the draft of a will which he
signed in the presence of Col. Vigh and Nelson Das both of whom attested it thereafter.
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After the will was executed Bhim Sain lived with Saraswati for
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nearly 3 years before his death on January 18, 1964. It may here be
mentioned that Bhim Sain had by his first wife four daughters and one
son. Of tllem two daughters were married to persons in aflluent
circumstances, the third daughter Shanta 22 years old had not been
married by the time Bhim Sain got married and the fourth daughter
Rita, a minor of 13 years old, was studying in Loreto Convent School
. .at Simla. The son Surendra Pal Arora was not living with his father
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.at that time. Both the courts have held that the relationship between
the son, Shanta and Rita on the one hand and the father on the other
were not good so much so that the two daughters were in fact living
with their brother Surendra Pal-the first appellant.
After the death of his father the first appellant Surendra Pal wrote
a letter to the respondent Saraswati in which he said that the respon-
·dent had mentioned about a will made by his father in her favour
regardiug which he expressed ignorance and wanted to see it. If
there was in fact no will he wanted "an amicable partition of considerable proport1es and assets" belonging to his father. Thereafter correspondence took place between the solicitors of the parties which
ulllmately resulted m the respondent filing an application on September 14, 1964, for the issue of a probate testimento-cuvi-annexo. A
.caveat had earlier been filed by the first appellant and the matter was
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s. PAL v. s. ARORA (Jaganmohan Reddy, !.)
691
contested. Rita, who was then unmarried and living with her maternal uncle Sikri, who was also her guardian ad /item, did not contesi
the will but she appears to have made an attempt before the Appellate
Court at a late stage to file an appeal. Her application was, however,
dismissed.
The grounds on which the will was contested were-(i) that it was
not a genuine document; (ii) that the signature of Bhim Sain Arora
on the will was not his real signature; (iii) that at the time of the execution of the will Bhim Sain did not know the contents of the will, nor
did he give any instructions to his solicitors nor did he consult them;
(iv) that the will had not been read over or explained to Bhim Sain
nor did he read it himself before it was executed, as such he was not
aware of the nature and effect of the will; (v) that even if the will had
been written and executed by Bhim Sain such execution of the will
had been obtained by fraud, coercion and undue influence or importunity of his wife in collusion with her brother-in-law Col. Vigh; (vi)
and that after making the will, Bhim Sain was prevented by force and
threats from executing a further will prepared by and under his instructions by which inter a/ia the property would have been equitably
divided and provisions made particularly for the aged mother and the
minor child.
The first appellant gave some particulars of the alleged fraud, ccercion, undue influence and importunity of the respondent exercised
upon Bhim Sain. Rita in her affidavit supported the averments and
allegations made by her brother. The mother of the deceased Wazir
Devi also filed an affidavit denying any knowledge of the execution of
the will and complained that after Bhim Sain's death the respondent
Saraswati made it impossible for her to live in the same premises
as a result of which she had to leave the house and live with her grandson the first appellant. The Trial Judge on the pleadings framed six
issues-"(!) Has the will been duly executed and attested? Is the
will genuine ? (2) Was the testator aware of the nature and effect of
the will ? (3) Had the testator testamentary capacity at the time
of signing the alleged will ? Was the execution of the will obtained
by fraud or coercion. or undue influence or importunity of the petitioner and others actmg with her ? (5) Was the deceased prevented
by force and threats from executing a further will by which his property would have been equitably divided? (6) To what relief, if any,
are the other parties entitled?" All these issues were held against the
first appellant.
In appeal also the Division Bench of the High Court confirmed
the findings of the learned Trial Judge. It may, however, be mentioned that there was no challenge to the testamentary capacity of
Bhim Sain though the affidavit of the first appellant and the affidavits
in support of the first appellant's case had contained such an averment. No evidence was also led to suggest that Bhim Sain was lacking in any manner of testamentary capacity. There was also no contest that the will was executed by Bhim Sain nor were the signatures of
the aforesaid witnesses challenged. It appears a feeble attempt was
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SUPREME COURT REPORTS
[1975] l S.C.R.
made by the maternal uncle of the first appellant Sikri to suggest that
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Bhim S1in tried to revoke the will.. Both the Courts have, however,
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held that no such attempt was ever made. The will is, however, sought
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to be attacked on two grounds : firstly, that it was executed origi-
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nally by Bhim Sain without any attestation, but subsequently the
attestation clause came into existence and the two attesting witnesses
subscribed th"ir s;gnatures; and secondly, the will had been procured
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by undue influence exercised on Bhim Sain by the first respondent as
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a condition for their marriage. The Trial Court as well as the AppeHate Court have rejected both these contentions on an elaborate and
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detailed consideration of each and every circumstance urged before
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them.
The propounder has to show that the will was signed by the testac
tor : that he was at the relevant time in a sound disposing state of
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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
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his presence and in the presence of each other. Once these elements
are established, the onus which rests on the propounder is discharged.
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But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature
is doubtful, the testator is of feeble mind or is overawed by powerful
minds interested in getting his property, or where in the light of the
relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting
that the dispositions of the will are not the result of the testator's free
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will and mind. Iu all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases were the propounder
has himself taken a prominent part in the execution of the will which
confers on him substantial benefit that is itself one of the suspicious
circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has
to be 'satisfied, as such the nature and quality of proof must be comF
mensurate with the need to satisfy that conscience and remove any
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suspicion which a reasonable man may, in the relevant circumstances
of the case, entertain. See H. Venkatac/lala Iyengar v. B. N. T/limma-
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jamma & Ors:(I) and Rani Purnima Devi and Anr v. Kumar K/lagendra Narayan Dev -& Anotf1er.(2) In the latter case this Court, after
referring to the principles stated in the former case emphasised that
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where there are suspicious circumstances the onus will be on the proponnder to explain them to the satisfaction of the Court before the
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will could be accepted as genuine; and where the caveator alleges
undue i nfiuence, fraud and coercion the onus is on him to prove the
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same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator,
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the condition of the testator's mind, the dispositions made in the
will which may be unnatural or unfair or improbable when considered
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(1) [19591 Supp. I S.C.R. 426.
(2) [ 1962] 3 S.C.R. 195.
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s. PAL v. s. ARORA (Jaganmohan Reddy, J.)
693
in the light of the relevant circumstances. 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. The observations
of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga(') support the above proposition. Mr. Ammer Ali
observed at p. 33 "It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the will on the ground that it was obtained by the exercise of undue
influences, excessive persuasion or moral coercion, it lay upon him to
establish that case." In the light of what has been stated if the
various requirements of a valid will are established. then as observed
by the Privy Council in Motihai Hormusjee Kanga's case(') at p. 33 'A
man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition."
In the light of the above guide-Jines, the contentions urged against
the grant of probate of the will will have to be considered. Before the
Appellate Court eight suspicious circumstances were marshalled which
were-(i) Saraswati Arora who was the sole recipirnt cf the entire
benefit of the will herself took part in the executicn cf the will at the
time of execution; (ii) the dispositions in the will by the testator were
unnatural, improbable or unfair as was apparent from the exclusion
of the mother Wazir Debi, as well as the exclusion of all the children
of Bhim Sain, particularly of Rita, the minor daughter and of Shanta
who was at that time unmarried; (iii) none of the attesting witnesses
was wholly disinterested; (iv) that no trained lawyer al'Pears to have
been engaged in the drawing up or execution of the will; (v)
no special reason could be adduced to explain the execution of the
will on February 8. 1961; (vi) the evidence in support of the will. particularly the evidence of the propounder was unsatisfa:tory and interested; (vii) there was evidence to show that some alteraticn had been
made in the date of the will; and (viii) the attestaticn clause seems to
have been typed in a separate operation after the typed will had been
taken out of the typewriter and then reinserted.
The Appellate Court agreeing with the Trial Judge held that the
first respondent was merely present at the time of the executicn of the
will and did not have anything to do with its executicn. The case of
the first appellant was that as a condition of the marriage arrangement, the will was executed and because of that Bhim Sain made no
provision for the maintenance of his aged mother or for the maintenance and marriage of his youngest daughter Rita who was then
studying. Instead he gave away the entire property to the first respondent which js a suspicious circumstance and raises an inference
of undue influence. This submission was clearly negatived, ar.d on the
(!) A.LR. 1924 P.C. 28.
(3) (1973) 2 S.C.R. 541.
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[1975] J S.C.R.
evidence there can be no gainsaying the fact that the conclusion to
which both the Courts have come to are unassailable. It is not for
us to fathom the motivations of man.
His actions and reactions
are unpredictable as they depend upon so many circumstances. There
is, however, always some dominant and impelling circumstance which
motivates a man's action though in some cases even a trivial and triflmg c1use imoels him to act in a particular way which a majority of
others may not do. At times psychological factors and the frame
of mind in which he is, may determine his action.
In this case, however, there is little or no difficulty in finding out
the probable reason why Bhim Sain while making the will did not provide for his mother and his youngest daughter.
These reasons are
elaborately set out in the judgment of the Appellate Court. No doubt
the learned Judge who delivered the judgment of the Bench did say
that the exclusion of the mother as well as his children particularly
Rita the minor daughter and Shanta showed the disposition to be unnatural, improbable and nnfair and would give rise to suspicious circumstances. In order to understand what the testator intended and
why he intended so, one has to get into his arm-chair to ascertain his
frame of mind and the circumstances in which he made the will.
As
we have stated, Bhim Sain lost his first wife on April 13, 1959. On
August 16, 1960 just over a year after her death, Bhim Sain went to
the police station and made a complaint against his son (Surendra
Pal). This complaint as recorded in the general diary showed that
Surendra Pal had been "continuously insulting, abusing and threatening to subject him to violence and incapacitate him and deform him".
According to Bhim Sein his son was doing all these because he had
been found out in the act of removing jewelleries and cash from the
vaults, safe and steel almirah.
On August 25, 1960 nine days after
his first complaint, Bhim Sain went to the Court of the Chief Presidency Magistrate and made a formal complaint against the appellant
under s. 350 of the Indian Penal Code. The complaint which he lodged
before the Court shows that he had tried to bring up his son properly
by giving him a sound education and also by initiating him into his
own line of business.
The son, however, picked up "high ways of
living and luxurious habits" and used to waste money recklessly.
In order to bring him back to the normal path of life he thought of
placing him in a responsible position so that he might be cured and
with this end in view Bhim Sain made over his business ventures under
the name and style of Card Board Paper Products Company to his
son.
After thedeath of his wifein April 1959 he thought that he would
get his son married to a respectable family and hoped that such a
marriage would induce him to settle down. Accordingly he got him
married to a girl from a highly respectable family.
But in spite of
showering all his affection, his son (the first appellant) was insulting
him and making demands upon him for moneys and putting him in
fear of life.
He then set out the details as to how the first appellant
had removed jewelleries valued at about Rs. 25,774/- as also some cash
from the loc~r of a Godrej Steel Almirah which used to be kept in
the room of the first appellant, and how, when Bhim Sain discovered
this loss and asked him about this theft, the first appellant flew into a
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s. PAL v. s. ARORA (Jaganmohan Reddy, J.)
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rage, used provoking language and tried to assault him. Thereafter
the first appellant was regularly threatening him and he had even removed bis double-barrel gun and cartridges from his Almirah and kept
it with him causing him constant fear. It will be observed that these
complaints against the son, whatever may be the justification, were made
long prior to the advertisement in the matrimonial column of the
Sunday Tribune, Ambala. At this time Shanta the third daughter
was admittedly living not with her father but with her brother the
first appellant and so was Rita the youngest daughter. Though
some attempt was made to show that Rita and Bhim Sain were on good
terms, the evidence as pointed out by both the Courts belies the assertion. Rita, though 13 years old came back from the school even before
the second marriage of he1 .. father. However, she did not stay
with her father but lived with her brother. An attempt was made
to show that the father used to go and see her when she went back
to school and thereafter used to meet her at the Victoria Memorial.
All this has been negatived. Jn our view, one thing stands out clearly
-and that is the relations between the father on the one hand and the
first appellant and the two daughters on the other were strained and
bitter. If at all, there was positive hostility between them. The
son and the daughters never came to see Bhim Sain even when he was
dying. The appellant did not take his son to see his grandfather
even though the first appellant admitted that his father was anxious
to see his grandson. The evidence of Amalendu that Bhim Sain
had gone to see Rita in Simla has been disbelieved. The Trial Judge
called Amalendu a coward and a liar. The Appellate Court considered his evidence to be unsatisfactory and rejected it. The conclusion to which both the Courts have arrived at is that Bhim Sain entered
into an agree nent with the first appellant in October 1960 long before
the meeting between the first respondent and the deceased in answer
to the advertisement had taken place. In that agreement Bhim Sain
made provision for the maintenance and marriage of Shanta who
was to reside with the first appellant. He had also provided for the
maintenance and residence of Rita though in that agreement no mention
was made about her marriage. The ]earned Advocate for the first
appellant made much of this omission as a]so the omission to provide
for the maintenance of his mother who was living with him. But as
the learned Judges of the Division Bench of the Calcutta High Court
pointed out, Bhim Sain was only 55 years of age when he married and
made the will.
He perhaps did not expect to die so soon, nor did he
think that he would not be able to perform the marriage of Rita,
nor provide for the maintenance of his mother during her lifetime .
Perhaps he did not entertain any doubt that the first respondent in
whose favour he had willed the properties would not discharge the
obligations which he would have to discharge when he was alive.
At the time of the marriage, with a positively hostile family such as
he had, the thing that would be uppermost in Bhim Sain's mind is
what would happen to his wife if she was left unprovided for.
Bhim
Sain's family would consider Saraswati a stranger to the family
and she
would be regarded as an interloper even after
her
marriage and if anything were to happen to him she would be left
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SUPREME COURT REPORTS
[1975] 1 S.C.R.
to the mercy of his inimical children. It is but natural for Bhim
Sain in these circumstances to provide for his newly wed wife
even without that wife asking or importuning her husband to do so.
Apart from this thinking one important circumstance is however ignored, and that is, Saraswati was not a gold-digger as the expression
goes. She was an educated lady, came from a good family, had been
a medical practitioner for about 13 years, had her own status in life
and was as lonely and longing for a male companion as Bhim Sain
was for a woman companion. In the letter written by Puri to Bhim
Sain's Personal Assistant giving particulars of Saraswati's education
and family, she has described herself as follows :
"The lady is healthy and in medical profession since 13 years.
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She now wishes to settle down in life only for companionship
and not interested in procreation. The preliminaries suit
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both and the rest can be judged on personal meeting only.
The lady is particular (keen) on a teetotaller and other sober
habits though quite high intellectually and quite modern,
though not ultra modern."
Bhim Sain was equally frank when he informed Puri through his Personal Assistant that "His wife died here only last year. His 2 daughD
ters are married in a millionaire family.
His 3rd daughter has just
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passed B.A. and is living with her brother. Seth Arora has only
one son (who has recently married) has got separate, independent,
lucrative business and is living separately. His youngest daughter
is studying i11 Loreto Convent School at Simla. Seth Arora is a
wealthy renowned merchant of Calcutta. He is of attractive and
"dignified personality. He is in perfect sound health, stout and
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energetic.
He is non-smoker and non-drinker. He comes from
West Punjab (Sialkot District) in 1930.
Since then he is carrying
on with the business." Regarding what was meant in the advertisement by "liberal-minded" the letter explained that by it was meant
that the person should not be slave to the old customs and to orthodox views.
From this correspondence it is obvious that practical ccmsideration
of companionship was the dominant feature of the arrangement while
the first respondent had no attachment, Bhim Sain had. But there
was no question of the first respondent feeling anxious about her
future as it was clear that Bhim Sain was impressing upon the lady
who would be his wife at the very outset that his having a family
would not cause any concern to her. Even during the talks Bhim
Sain seems to have mentioned to the first respondent that he would
make a will in her favour.
As we have noticed Bhim Sain was disgusted with the manner in which his children had treated him and it
was this attitude after the death of his first wife that made him a lonely
man longing for a companion. He also knew that he had provided
for his children and that he had no further ohligations, except for
providing for the marriage of his youngest daughter Rita and for
maintaining his aged mother.
But, as we have already
said, he
probably thought he would be able to discharge these two duties
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during his lifetime. His mother, it is said, was 75 years old, while
he himself was only 55 years old. On any actuarial considerations
he was likely to survive his mother and perform the marriage of his
youngest daughter Rita. In our view, there is nothing suspicious
about the will on this score.
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The learned Advocate for the appellants however cited a passage
from Halsbury's Laws of England, Vol. 17, Art. 1311 at p. 681 (3rd
Edn.) to persuade us to raise a presumption of undue influence against
Saraswati. That passage says :
"Of other relations from the existence of which the Court
will presume the exercise cf undue influence these which have
perhaps led to the avoidance of the greatest number of ccnveyances are those of spiritual adviser and devotees, medical
attendant and patient, principal and agent, and that of a man
to a woman to whom he is engaged to be married."
Whatever may be the position in England as to the presumption of
undue influence in the case cf parties engaged to be married, it does
not, in our view, apply to conditions in India. Even for that matter
the conditions in England tcday may not justify the validity cf such
a presumption. We find that the cases relied upon in Halsbury for
the above statement are all of the 19th Century, and the last of the cases
is of the year 1931, and is with reference to undue influence being exercised by a man over the woman to whon~ he is engaged to be married.
The tenacious application cf precedents may justify the statement
in Halsbury, but since the 19th Century and after 1931 much water
has flown under the bridges. The family law in England has undergone a drastic change, recognised new social relationship betv.cen
man and woman. In our country, however, even today a marriage
is an arranged affair. We do not say that there are no exceptioP.S to
this practice or that there is no tendency, however imperceptible,
for young persons to choose their o\vn spouses, but even. in such
cases the consent of their parents is one of the desiderate which is sought
for. Whether it is obtained in any given set of circumstances is another
matter. In such arranged marriages in this country the question of
two persons being engaged for any appreciable time to enable each
other to meet and be in a position to exercise undue influence on one
another very rarely arises. Even in the case of the marriage in the
instant case, an advertisement was resorted to by Bhim Sain. The
person who purports to reply is Saraswati's mother and the person
who replied to her was Bhim Sain's Personal Assistant. But the
social considerations prevailing iic this country and ethcs even in such
cases persist in determining the respective attitudes. That apart,
as we said earlier, the negotiations for marriage held in Saras\\ati's
sister's house have all the appearance of a business transaction. Irl
these circumstance that portion of the statement of the law in Halsbury which refers to the presumption of the exercise of undue influence
in the case of a man to a woman to whom he is engaged to be married
would hardly be applicable to conditions in this country. We have
had occasion to point out the danger of such statements of law enunciated and propounded for meeting the conditions existing in the
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[1975] 1 S.C.R.
countries in which they are applicable from being blindly followed
in this country without a critical examination of those principles and
their applicability to the cor.ditions, social norms and attitudes existing in this cour.try. Often stateme1,ts of law applicable to foreign
countries as stated in compilatior.s ar.d learned treatises are cited
without making a critical examir.ation of those prir.ciplcs in the background of the cor.ditior.s that existed or exist in those countries. If
we are not wakeful and circumspect, there is every likelihood of their
being simply applied to cases requiring our adjudication without
consideration of the background and various other cor.ditions to which
we have referred.