ARTHUR ALBERT UNGER Vs. MRSMAUD MARTIN

JUDGEMENT

(1.) This appeal arises out of an application for the probate of a will that is alleged to have been executed in Agra on 25 January 1933 by one Mr. John Arthur Unger. The applicant in the ease was Arthur Albert hereinafter referred to as the petitioner, the petitioner was one of the sons of John Unger. The application was successfully opposed by Mrs. Martin, one of the daughters of John Unger, and was dismissed by the learned District Judge of Agra with the result that the petitioner has filed the present appeal. John Unger died in Agra on 24 May 1935, and the application for probate was filed on 7 July of the same year. John Unger was at the time of his death 87 years of age and was admittedly in indifferent state of health for some months before his death, He had four sons and two daughters living at the time of his death. His wife had predeceased him in the year 1931. The property of which John Unger was possessed of at the time of his death was worth Rs. 15,000. The evidence in the case shows that of all the sons of John Unger the petitioner was most business-like and had from time to time rendered pecuniary help to his father. The objector Mrs. Martin is the wife of one Mr. Penat and had some children by him. Mr. Penat is alleged to have left India in the year 1922 having taken the children with him and since then the objector is living with one Mr. Martin and has two children by him. It is however clear that the objector is not the wife of Mr. Martin though throughout these proceedings she has been described as Mrs. Martin. The objector was admittedly living in Lucknow in the year 1932, and it is common ground that John Unger, after the death of his wife, lived with the objector in Lucknow in the year 1932. Further it is also common ground that John Unger came or was brought to Agra on 3 January 1933, and thereafter continued to reside in Agra till his death.

(2.) The petitioner was in the service of the Bengal & Assam Railway and mostly resided in Assam. He retired from service in July 1933 and is since then living in Agra. It is however admitted by the petitioner that on the receipt of a telegram from one Mr. Carson, who is one of the attesting witnesses to the will, informing the petitioner that John Unger had arrived in Agra the petitioner came from Assam to Agra on or about 11 January 1933. It is farther an admitted fact that the petitioner was present in Agra on 25 January 1933, the date on which the will is alleged to have been executed by John Unger, The ease put forward by the petitioner was that John Unger executed the will in question of his own free will and that ho was in the enjoyment of sound disposing mind at the time of the execution of the will. These allegations were denied by Mrs. Martin who alleged that "John Unger at the time of his signing the will was in a very feeble state of health, unable to resist importunity and in that condition be was pressed by the applicant to sign the will." She asserted that John Unger was not "a free agent at the time he put his signature to the will" and had not a sound disposing mind. In short Mrs. Martin, while admitting that the will in question bore the signature of John Unger, contested its validity on the ground that John Unger was, at the time of the execution of the will, in a feeble state of health and was not in the enjoyment of sound disposing mind, and that the will was the outcome of undue influence exercised on John Unger by the petitioner.

(3.) The will is typewritten on a sheet of white paper, is attested by two witnesses named Carson and Black, and was registered by the Sub-Registrar of Agra on the very data on which it purports to have been executed, viz. on 25 January 1933. Two of the typewritten lines of the will have been scored out and the erasures have been signed by John Unger at four places. The will including the lines that have been scored out runs as follows: I hereby revoke all testamentary writings heretofore executed by me and declare this to be my last will. I bequeath to my son, Arthur Albert Unger, in case of my death all my property at Agra--the piece of ground with one dwelling house purchased by me and the four new houses built by me and I request him to make use of the income of my property in providing for my needy : children and grand-children. I give, devise, bequeath and appoint all the residue of my moveable and immovable property whatsoever and wheresoever unto my son, Arthur Albert Unger absolutely and I appoint my son, Arthur Albert Unger, as sole executor of this my will. In witness whereof I have hereunto set my hand this day One thousand nine hundred and thirty three. (Sd.) J.A. Unger.