# Edward Ezra and Another v. The State of West Bengal Mukherjea ]. Naresh Charan Das Gupta

- **Citation:** [1955] 1 S.C.R. 1035
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 202 of 1952
- **Bench:** Mehr Chand Mahajan C.J, Bhagwati, Jagannadhadas, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/edward-ezra-and-another-v-the-state-of-west-bengal-mukherjea-naresh-charan-das-295
- **Pages:** 11

## Headnote

Will-Executed witlz due solemnities by a person of competent
• understanding-Onus of proving undue infiuence-Undue infiuence
-Meaning
of-Indian Succession
Act, 1925 (XXXIX of 1925),
s. 63-Due attestation-Proof of.
When once it has been proved that a will has been executed
with Jue solemnities by a person of competent understanding and
apparently a free agent, the burden of proving that it was executed
under undue influence is on the person who alleges it.
It is
well-settled
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 cause before the te~tator and to
persuade him to make a disposition in his favour. And if the testator
133
Edward Ezra
and Another
v.
The State of
West Bengal
Mukherjea ].
Naresh Charan
Das Gupta
v.
Paresh Charan
Das Gupta
1036
SUPREME COURT REPORTS
[1955]
retains his mental capacity
and there
is no element of fraud or
ccercion, the will cannot be attacked on the ground of undue inHuence.
All influences are not unlawful. Persuasion, appeals to the affections or ties of mankind, 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 pressure
of whatever character, whether acting on the fears or the hopes, if so.
exerted as to overpower the volition without convincing the judgment,
is a species of restraint under which no valid will can be made.
It cannot be laid do,vn as a matter of law that because the
attesting witnesses did not state in examination-in-chief that they
signed the will in the presence of the testator, there was no due
attestation as required by s. 63 of the Indian Succession Act. It is a
pure question of fact depending on the appreciation of evidence and
the circumstances of each case \Vhether the attesting witnesses signed
in the presence of the testator.
Boyse v. Rossborough ([1857] 6 H.L.C. 2; 10 E.R. 1192); Craig
v. Lamoureux (1920 A.C. 349) and Hall v. Hall ([1868] L.R. 1 P. &
D. 481 ), referred to.

## Text

..
-
y
S.C.R.
SUPREME COURT REPORTS
1035
the
High Court itself to have lost seisin of these cases
after the 26th January,
1950, and they
had no jurisdiction to proceed with the trial.
As the
High
Court
directed these cases to be tried
by a competent court,
they could not possibly
be sent back for trial to the
Special
Tribunal assuming that any
such
Tribunal
existed or could be constituted
by the
Central
Government.
The only court which was competent to try
these cases would be the special court
under Act XII
of 1952 and its jurisdiction could not be ousted as the
order of the High Court itself proceeded on the
footing that no trial could
be held by the
Tribunal constituted under
Ordinance
XXIX of 1943. The
jurisdiction of the special court not being ousted by section
12 of the Act or by the order of the
High Court, we
are unable to hold that the
proceedings
before
it
should be quashed.
The result is that the appeal is dismissed.
NARESH CHARAN DAS GUPTA
v.
PARESH CHARAN DAS GUPTA
[MEHR CHAND MAHAJAN C.J., BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.]
Will-Executed witlz due solemnities by a person of competent
• understanding-Onus of proving undue infiuence-Undue infiuence
-Meaning
of-Indian Succession
Act, 1925 (XXXIX of 1925),
s. 63-Due attestation-Proof of.
When once it has been proved that a will has been executed
with Jue solemnities by a person of competent understanding and
apparently a free agent, the burden of proving that it was executed
under undue influence is on the person who alleges it.
It is
well-settled
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 cause before the te~tator and to
persuade him to make a disposition in his favour. And if the testator
133
Edward Ezra
and Another
v.
The State of
West Bengal
Mukherjea ].
Naresh Charan
Das Gupta
v.
Paresh Charan
Das Gupta
1036
SUPREME COURT REPORTS
[1955]
retains his mental capacity
and there
is no element of fraud or
ccercion, the will cannot be attacked on the ground of undue inHuence.
All influences are not unlawful. Persuasion, appeals to the affections or ties of mankind, 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 pressure
of whatever character, whether acting on the fears or the hopes, if so.
exerted as to overpower the volition without convincing the judgment,
is a species of restraint under which no valid will can be made.
It cannot be laid do,vn as a matter of law that because the
attesting witnesses did not state in examination-in-chief that they
signed the will in the presence of the testator, there was no due
attestation as required by s. 63 of the Indian Succession Act. It is a
pure question of fact depending on the appreciation of evidence and
the circumstances of each case \Vhether the attesting witnesses signed
in the presence of the testator.
Boyse v. Rossborough ([1857] 6 H.L.C. 2; 10 E.R. 1192); Craig
v. Lamoureux (1920 A.C. 349) and Hall v. Hall ([1868] L.R. 1 P. &
D. 481 ), referred to.
CIVIL
APPELLATE JuRISDICTION : Civil
Appeal No.
202 of 1952.
Appeal from the Judgment and Decree dated
the
5th day of March, 1951 of the
High
Court of Judicature at Calcutta in Appeal from
Original
Decree
No. 87 of 1949 arising
out of
the
decree
dated
the
20th day of January,
1949 in Suit No. 94
of 1946 of
the
Court of 3rd
Additional
District
Judge
at 24Parganas.
M. C. Setalvad, Attorney-General for India, (Sukumar Ghose, with him), for the appellant.
Bankam Chandra Banneriee and R. R. Bistoas,
for
respondent No. 1.
1954.
December 2.
The
Judgment of the Court
was delivered by
VENKATARAMA
AYYAR
J.-This appeal
anses out
of an application filed by the first respondent
for
probate of a will dated 28-11-1943 executed
by one
Bhabesh
Charan Das Gupta. The testator
died
on
27-10-1944 leaving
him surviving
two sons,
Paresh
Charan Das (the first respondent), Naresh Charan Das
y
...
,_.
., ·,
•
S.C.R.
SUPREME COURT REPORTS
1037
(the appellant), and a daughter,
Indira
(the second
respondent),
The estate consisted of a sixth share in
some ancestral lands at Matta in the District of Dacca,
and a house No. 50, South End Park,
Calcutta,
built
by the testator on a site purchased by him.
By his
will, he directed that a legacy of
Rs. 10 per mensem
should be paid to his younger son, the
appellant,
for
the period of his life; that his
daughter
should
be
entitled to a life estate in five specified rooms
in the
house to be enjoyed
either
personally by
her and
the members of the
family, or by leasing
them
to
others; that a legacy of
Rs. 10 per mensem should be
paid to one or the other of two hospitals ·named,
and
that subject to the legacies aforesaid, tl1e first respondent should take the
estate, perform
the
sraddha,
and pay one-sixth of the
expenses
for
the worship
of the deity installed in the ancestral house.
The first respondent who was the
sole
executor
under the
will, applied
in due
course
for probate
thereof.
The appellant entered caveat,
and
thereupon,
the
application
was
registered
as a suit.
He
then
filed a written statement, and on that, the
following
issues were framed:
(1) "Was the
Will
inquestion
lawfully
and
validly executed and attested ?
(2) Had the testator
testamentary
capacity
at
the time of the execution of the Will?
(3) Was
the
Will in question
executed
under
undue influence and pressure exerted by Paresh Charan
Das Gupta?"
The Additional District Judge of the 24-Parganas who
tried the suit held in favour of the first respondent on
issues 1 and 2, but against him on issue 3, and in the
result, probate was refused.
The first respondent took the matter in appeal
to
the High Court, and that was heard by G. N. Das and
S. C. Lahiri, JI. Before them, the appellant
did not
contest the correctness of the finding of the Additional District Judge that the testator
had testamentary capacity when he executed
the will.
The
two
contentions that were pressed by him were
(1) that
the will
in question was . executed
by
the . testator
Naresh Charan
Das Gupta
v.
Paresh Charan
Das Gupta
Venkatarama
Ayyar ],
1954
NQrtsh Charan
Das Gupta
v.
Paresh Charan
Das Gupta
V enkatarama
Ayyar J.
1038
SUPREME COllRT REPORTS
[1955]
under undue influence of the first respondent, and
(2)
that it was not validly
attested,
and
was therefore
invalid.
On both the questions,
the
learned
Judges
held in favour of the first respondent, and
accordingly
allowed the appeal, and directed the grant of probate.
Against this judgment, the caveator
prefers
this
appeal, and contends
that the
findings of the
Court
below on both the points are erroneous.
The main question that arises
for our decision is
whether the will in question was executed
under
the
undue influence
of the first
respondent. "When once
it has been
proved", observed
Lord
Cranworth
in
Boyse v. Rossborough( ') "that a will has been executed
with due solemnities
by a person of competent
understanding and
apparently a free agent,
the
burden of
proving that it was executed under undue influence is
on the
party
who
alleges it".
Vide also
Craig v.
Lamoureux('·).
In the present case,
it is not in dispute that the
testator
executed
the will in question, and that he had the requmte
mental
capacity
at that time.
The burden,
therefore, is on the appellant to
establish
that the will
was the
result
of
undue influence brought to bear on him by the
first
respondent.
The facts so far
as
they
are material
for this
issue, may now be stated.
The testator was a police
officer and retired in 1927 as
Deputy
Superintendent
of Police.
Paresh Charan, the elder son, was married
in 1925, and lived all along with his parents with his
wife and children.
Nirmala, the wife of the testator,
died in 1929, and thereafter . it was the wife of Paresh
Charan that
was
maintammg
the
home.
Naresh
Charan studied up to I.A.,
but in 1920
discontinued
his studies and got into employment in
the
workshop
of Tata & Co., at Jamshedpur on a petty
salary ; and
the evidence is that
t11ereafter
he
was
practically
living apart from the family.
In 1928 he married one
Shantimayi, who was a widow having some
children
by her first husband.
She belonged to the
Kayastha
caste, whereas
Naresh Charan belonged
to the Baid
caste.
The testator
was
strongly
opposed
to
this
(1) [1857) 6 H.L.C. 2; IO E.R. 1192.
(2) 1920 A.G. 349·
(
y
-
'S.C.R.
SUPREME COURT REPORTS
1039
'f
intercaste marriage, and did his
best
to stop it but
without success.
The correspondence
that
followed
between the appellant and his
father
during
this
period clearly
shows
that the father
felt very sore
·over this alliance,
and wrote that
it could not pain
him even if his son died.
With this background, we may
turn to the will.
The relevant recitals therein are as follows:
"My younger son Sri Naresh Charan Das Gupta
is behaving badly with me and without my knowledge
.and consent he has married a girl of a different caste
and she has given birth to two female
children and
-one male child.
In these
circumstances
my said son
Sri Naresh
Charan Das Gupta and his
son
Sreeman
Arnn Gupta and the two daughters
or any other son
-or daughter who may be born to him,
will
not
be
entitled to perform my sradh or to offer me
Pindas.
For all these reasons
I deprive
my second son Sri
Naresh
Charan and his son Sreeman Arnn Gupta and
his two daughters and any
other sons
or
daughters
who may be born to him as
well
as
Naresh's
wife
Sreemati Santi of inheritance from me and from all
'<
my movable
and immovable
properties,
ancestral as
•
·-.
well as self-acquired.
They shall
not get any share
-or interest
or possession
in any
of my aforesaid properties".
It is not disputed that
these recitals
accord
with
what the testator had expressed in the correspondence
at the time of the marriage and for some years
thereafter.
But it is argued that since then,
more than a
decade had passed before the will was executed,
and
that during this period the
natural
affection
of the
testator for his son had re-asserted
itself,
that he had
forgiven and forgotten
the
past, and
that when the
will was actually
executed,
the
recitals
above
extracted did not correctly reflect the
then mind of the
testator.
We have been taken through
the entire
correspondence that
passed between the testator
and
the
appellant and the members of his family.
It shows
that the testator was solicitous about
the welfare
of
the appellant, and was enquiring about his health and
r954
N are sh Charan
Das Gupta
v.
Paresh Charan
Das Gupta
Venkatarama
Ayyar J.
1954
Naresh Charan
Das Gupta
v.
Paresh Charan
Das Gupta
V enkatarafna
Ay••ar· J.
1040
SUPREME COURT REPORTS
[ 1955]:
sending him on
occasions
medicines;
that
he
waso
affectionately disposed towards his children
and waso
sending them presents of cloth; that
latterly
he had
so far modified his attitude towards
the wife of the
appellant as to invite her and her children to Calcutta;
that he himself stayed with them
for some
time at
Jamshedpur and was giving advice to
the
appellant
on matters connected
with his
employment.
It
was
argued that there was thus a gradual change of heart
on the part of the father towards . the
appellant
and·
the members of his family, that
the recitals
in
the
will could not be reconciled with this change of
attitude, and that they
must have been inspired by the·
first respondent.
We are unable to agree.
It is one
thing for a father who feels that he has
been wronged
by a disobedient son to wish him
well in life, and
quite another thing to give him any of his properties.
In the whole of the correspondence
which
has
been
read to us, there is nothing to suggest that he wanted
the appellant to share in the
estate.
On
the
other
hand, there are indications
that
even
when
the appellant was in financial difficulties,
the
testator
considered that
he was under no sort of obligation to·
come to his help.
Vide
Exs. 5(c) and C(l).
It may
be mentioned that after making the will oh 28-11-1943·.
the testator continued to correspond
with
the appellant and the members
of his family
precisely in the
same terms as before.
Vide Exs. B(2), C( 4) and A(lO) ..
That shows that the two cnrrents of
natural
affection and settlement of
properties
flowed
in distinct
channels, and that the change
in the conrse of the·
one had no effect on the direction of the other.
The testator, it is clear
from
the
correspondence,.
was a man of strong will, determined and unshakabJe.
in his resolutions.
He wrote
of himself in
Ex. C(34)
that "I am
one-third
conservative,
one-third
liberat
and one-third
autocratic".
He
was
very
solicitous
about the family prestige
and
reputation,
and
felt
deeply
hurt when
his son entered into
a marnage
which was viewed by his community
with
disfavour.
In Ex. 6( c) he wrote, "You broke
our
hearts
for a
woman who has no right to be in
my house".
And
.,
.
;. .....
- 1
\
·•
S.C.R.
SUPREME COURT REPORTS
1041
as late as 25-12-1941 he wrote to the appellant
that
if
his wife and
children
came to live
with him "they
must prepare
themselves
to meet uncalled
for taunts
and unpleasant enquiries
which may be made by our
near and distant village relations in our society who
will come to see us".
(Vide Exhibit C(37) ).
There
cannot,
therefore,
be any doubt that
the testator was
all along smarting under a sense of social
humiliation
by reason
of the inter-caste marriage, and
that the
recitals in the will were manifestations
of a sore
111
his heart which had remained unhealed to the last.
It was also argued
that the
dispositions
in the
will were unnatural in that
the
appellant
had been
practically disinherited and
his
children
altogether
ignored.
This by itself cannot lead
to any inference
of undue influence on the part of the first respondent.
Having regard to the character
of the
testator
and
his feelings in the matter it is not a matter
for · surprise that he should have cut ofl the appellant
with
a small legacy.
It must also be mentioned
that
the
net value of the assets as given in the probate
petition is Rs. 23,865-10-9, and if the other legacies
and
charges are deducted, what was
bequeathed
to
the
first respondent cannot be said to be very
considerable.
It also appears that at that time his salary
was
Rs. 60 per mensem
and that he had a number
of
children, whereas the appellant is stated
to
have had
a basic salary of Rs. 250 per mensem then.
The first
respondent, his wife and children have all along been
dependants of the testator, whereas the appellant
had
lived apart from him from 1920.
And it is not unnatural for the testator so to order the distribution
of his
estate as to secure
the
continuance
of the
ex1stmg
state of affairs.
The terms of the will, therefore, cannot be relied on as intrinsic evidence of undue influence, as contended for by the appellant.
Then there is the evidence of Indira, the daughter
of the testator,
which was taken on commission.
She
deposed that
the testator had
told her
that
there
were troubles in the house,
that
the elder son had
objection to stay with the
younger one, "because
if
they live together, there will be social trouble regardNaresh Charan
Das Gupta
v.
Paresh Charan·
Das Gupta
Venkatarama
Ayyar J.
/
1954
N aresh Charan
Das Gupta
v.
Yaresh Charan
Das Gupta
Venkatarama
Ayyar J.
1042
SUPREME COURT REPORTS
[19551
ing his daughter's marriage", and
that
he
therefore
wanted to make a will.
She went on to add that the
father subsequently wanted to alter the will,
and sent
for her
repeatedly
for
discussions,
but
that
she
generally excused herself, because she did not like to
intervene in the
matter, and
that on those occasions,
he told her, "At present this will stand,
but
I want
to modify it in future".
Indira also deposed that
the
first respondent and his wife used to tell the testator
that there was no change in the conduct of the appellant, that he was extravagant
in
his habits
and incurred debts, and that he had taken away some articles.
We do not consider that it is safe to act on this
evidence.
It is clear from Exhibit 1 that
Indira and
her husband had taken sides with
the
appellant
as
against the first respondent, and wrote to him that
in spite of the will the appellant
"should have
his
share as early as
possible in order to
avoid
further
complication", though it may be noted that
they
111sisted on their rights
under the will.
Stripped of
all
its embellishments, the evidence
of Indira,
if
true,
comes only to this
that
the
first
respondent
told
his father
that he
could
not
live
under the same
roof with his brother, and that in view
of that attitude,
the testator
gave no share
to the appellant
in
the house.
We are unable to see any undue
influence
in this.
The first respondent was entitled to
put forward his views in the matter, and so long as
the ultimate decision lay with
the testator
and his
mental
capacity was unimpaired,
there can be no question of
undue influence.
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
y
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
-
-
}
•
' ' -
S.C.R.
SUPREME COURT REPORTS
1043
undue influence. The law was thus stated by Lord
Penzance in Hall. v. Hall(1):
"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, pressure of whatever character, whether
acting on the fears or the h-0pes, 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 thr~ats , such as the
testator has the courage to resist, moral command
- 7
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, but not driven; and his
will must be the offspring of his own volition, and
not the record of some one else's".
Section 61 of the Indian Succession Act (Act XXXIX
of 1925) enacts that,
"A will or any part of a will, the making of
which has been caused by fraud or coercion, or - by
such importunity as takes away the free agency of the
testator, is void".
Illustration (vii)
to the section is very instructive,
and is as follows:
-i
"A, being in such a state of health as to be
capable of exercising his own judgment and volition,
B uses urgent intercession and persuasion with him
to induce him to make a will of a certain purport. A,
in consequence
of the
intercession
and persuasion,
but in the free exercise of his judgment and volition,
makes his will in the manner recommended bv B.
The will is not rendered invalid by the intercession
and persuasion of B" .
..-:,
(1) (1868) L. R. IP. & D. 481 & 482.
134
1954
Naresh Charan:
Das Gupta
v.
Paresh Charan
Das Gupta
Venkatarama
Ay:iar J.
-
1954
J{arcsh Charan
Das Gu.Ota
v.
Paresh Charan
Das Gupta
Venkatarama
AyyarJ.
1044
SUPREME COURT REPORTS
[1955]
Even if we accept the evidence of Indira, the
case would, on the facts, fall within this Illustration.
It is not disputed
that the testator was in full possession of his mental faculties.
There is no proof that
the first respondent did or said anything which would
have affected the free exercise by the testator of his
volition. On the other hand, it is proved that the first
respondent had no act or
part in
the
preparation,
execution, or registration of the will. It is a holograph
will, and the evidence of P. W s. 1 and 2 is that if was
the testator himself who made all the arrangements
for its execution, and that it was actually executed at
the residence of P.W. 1.
The document was presented
for registration by the testator, and he kept it with
himself, and it was taken out of his cash box after his
death. He lived for nearly a year after the execution
of the will, and even on the evidence of Indira, he
was often thinking of it, and discussing it, but declared
that it should stand.
The
cumulative effect of the
evidence is clearly to establish that the will represents
the free volition of the testator, and that it is not the
result of undue influence by the first respondent or his
relations. It should be mentioned that Indira
herself
sought to enforce his rights under the will shortly
after the death of the testator, and that the appellant
also obtained payment of legacy under the will for a
period of 15 months. No ground has been established
for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion
that the will is not open to question on the ground
of undue influence.
It was also argued for the appellant
that
there
was no proof that the will was duly attested as required
by section 63 of the Indian Succession Act, and that
it should therefore be held to be void. P .W s. 1 and
2 are the two arrestors, and they stated in examination-in-chief that the testator signed the will in their
presence, and that they attested his signature.
They
did not add that they signed the will in the presence
of the testator.
Now, the contention is that in the
absence of
such evidence it must be held that there
was no due attestation.
Both the Courts below have
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SUPREME COURT REPORTS
1045
held against
the
appellant on this contention.
The
1earned Judges of the High Court were of the opinion
that as the execution and attestation
took
place
at
one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled
by appointment,
they must all of them have been
present
until
the
matter was finished,
and as the witnesses
-were not
-cross-examined on the question
of attestation, it could
properly
be inferred that
there was
due
attestation.
It cannot be laid down as a matter
of law
that
because the witnesses
did not state in
examination-in-
·chief that they signed the will in the presence
of the
testator, there was no due attestation.
It will depend
-0n the circumstances elicited in evidence
whether
the
attesting witnesses signed in the presence of the testator.
This is a pure
question of
fact depending
on
appreciation of evidence.
The finding of the
Court
below that the will was duly attested 1s based
on a
·consideration of all the materials,
and must
be accepted.
Indeed, it is stated in the
judgment
of the
Additional District Judge that "the fact of due execution and attestation of the will was
not challenged
on behalf of the caveator at the
time of
the hearing
of the suit".
This contention of the appellant
must
.also be rejected.
In the result, the decision
of the
High Court is
confirmed, and this appeal 1s dismissed,
but
m
the
-circumstances, without costs.
Appeal dismissed.
BUDHAN CHOUDHRY AND OTHERS
v.
THE STATE OF BIHAR.
[ME.HAR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, V1VIAN BosE, BHAGWATI, JAGANNADHADAS
and VENKATARAMA AYYAR JJ.]
Constitution of India, Al'ticle 14-Code of Criminal Procedure
~ (Act V of 1898), section 30-Whether ultra vires the ConstitutionArticle 14-Reasonable classification-Not forbidden-Test of permissible classification-Necessary conditions-Constitution-Whether
N ar-.sh Charan
Das Gupta
v.
Paresh Cha an
Das Gupta
Venkatarama
Ayyar J.
1954
December
~