D.K.Seth, J. - (1.) Out of four principal issues involved in the judgment under appeal, three were decided in favour of the propounder of the Will. The Will was found to be (1) duly executed and attested; (2) and genuine; (3) the caveators failed to substantiate that (b) the testatrix at the time of execution of the Will suffered from in senile dimentia. So far issues No. 3(a) and 4 are concerned, it was found that the Will being the product of undue influence exercised by Harendra Nath Das and the execution of the Will being surrounded by suspicious circumstances, the propounder failed to satisfy the conscience of the Court that the Will was the produce of the testatrix's own will and volition and not made under the influence of the propounder. Against this decision the propounder has preferred this present appeal. No cross-objection or cross-appeal has been filed by the caveator. In this context, the Court has to find out whether the learned Single Judge was right in holding that the Will was executed under undue influence exercised by Harendra Nath Das (Harendra Nath). It may be noted that the issue No. 3(a) was whether the testatrix Shyama Sundar Dassi had testamentary capacity to execute the Will. From the evidence it appears that she had full testamentary capacity to execute the Will. Therefore, this issue ought to have been held in favour of the propounder. The only question that stares on the face of the propounder is that whether such testamentary capacity was exercised under the undue influence of Harendra Nath. The scope of the appeal is confined only to that extent. Both the learned Counsel had argued the case elaborately for days together and had drawn our attention to the various materials available on record to support their respective contention. We shall be dealing with the relevant materials as hereafter in the light of the discussion on the question and the principles since established. The question:
(2.) The question that is involved is interesting in nature. Inasmuch as when all the issues were found in favour of the propounder, only the suspicious circumstances that surrounded the execution of the Will is required to be probed and found out as to what extent the same would invalidate the Will and defeat the case of the propounder. In order to ascertain the same, before we look into the materials, we may discuss the settled principles of law operating in the field. The validity of the Will is to be tested on the anvil of the principles enunciated through different judgments rendered by the different Courts including the Privy Council and Supreme Court and the Courts in England and India. The principles followed both in England and India are almost identical. Propounding a Will: The principle :
(3.) Under section 59 of the Indian Succession Act, 1925 Explanation 4 requires that the state of mind of the person making the Will shall be such that he must know what he is doing and shall be free from any intoxication, illness or such other cause that prevents him knowing what he is doing. Section 61 in Illustrations (vii) and (viii) explain the exceptions to the importunity, so far as relevant for our present purpose, as that takes away the free agency of the testator caused by fraud or coercion rendering the making of the Will void. This fraud, coercion or such importunities are grounds attracting Explanation 4 of section 59 since elaborated in section 61. Inducement or influence will not render the Will void when the Will is executed by the testator in the free exercise of his judgment and volition. Similarly, attention and flattery persuading the testator to make the Will will not invalidate the making of the Will if executed in free will and volition. These propositions have posed many a difficulties before the Courts by reason of different kind of facts coming before it. On this score the law as developed into the settled proposition, may be found to be followed in various decisions. 3.1. The rules governing the propounding of a Will are two. First, the onus probandi lies in every case upon the party propounding the Will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of the testator. Second, that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and zealous in examining any evidence in support of the instrument, in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. 3.2. The strict meaning of the term 'onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding the Will. It is in general discharge by proof of capacity and the fact of execution from which the knowledge of and assent to the contents of the instrument are assumed. It cannot be that the simple fact that the party who prepared the Will being himself a legatee, is in every case under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will, unless additional evidence is produced to prove the knowledge of its contents by the deceased. In a case where there appears to be some material to find out that the person who was a legatee to the Will had taken some part in the making of the Will, then the propounder as a legatee must prove that the testator had actual knowledge of the contents; and that the instructions flowed from him and that the instrument was read over to him are the most satisfactory evidence of such knowledge. In such a case, it is, at most a suspicious circumstance of more or less weight, according to the facts of each particular case, in some, of no weight at all, varying according to the circumstances, the quantum of the legacy and the proportion it bears to the property disposed of, and numerous other contingencies, but in no case amounting to more than a circumstance of suspicion, demanding vigilant care and circumspection of the Court investigation the case, calling upon it not to grant the probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. 3.3. It may not be necessary, that in all cases, even if the testator's capacity is doubtful, the precise species of evidence of the deceased's knowledge of the Will is to be in the shape of instructions for, or reading over the instrument. They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof, by which the cognizance of the contents of the Will may be brought home to the deceased. The Court would naturally look for such evidence, in some cases it might be impossible to establish a Will without it, but it has no right in every case to require it. 3.4. The above principles emanate from Pendock Barry Barry vs. James Butlin, 1838 (2) Moore PC 480. This principle when followed in Parker & Anr. vs. Felgate & Tilly, 1883 (8) P&D 171, it was elaborated as to whether the testatrix was capable of understanding what was going on and recollect all that she was doing. A person may not have the capacity to go over the whole transaction and take up thread of business from the beginning to the end and think it all over again, but if he is able to say to himself that he had settled the business with his solicitor would be sufficient. It is enough if he is capable of training his thought. The same principle was followed in Tyrrell vs. Panton & Anr., 1891 (4) All ER (Reprint) 1120, with the observation that the rule throwing the onus on the party propounding a Will to prove that it expresses the true will of the testator is not confined to cases where a Will is prepared by or on the instruction of the person taking a benefit under it, but extends to all cases in which circumstances exist that excite the suspicion of the Court. Wherever such circumstances exist, and whatever their nature may be, it is for those, who propound the Will to remove such suspicion or doubt, and to prove affirmatively that the testator knew and approved the contents of the documents. It is only when this is done that the onus is thrown on those who oppose the Will to prove fraud or undue influence, or whatever else they rely upon, to displace the case made for proving the Will. Undue influence: 3.5. In Craig vs. Lamoureux, 1920 AC 349 (PC) dealing with undue influence, it was held that when once it is proved 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 rests on the person who so alleges. The burden is not discharged by showing merely that the beneficiary had the power unduly to overbear the will of the testator, it must be shown that in that particular case the power has been exercised, and that execution of the Will was obtained thereby. The principle was followed in Sarat Kumari Bibi vs. Rai Sakhi Chand Bahadur & Ors., AIR 1929 PC 45 where it was held that when the writer of a Will has taken a very active part in the preparation of the Will under which he gets a substantial advantage, the propounders of the Will must prove that the testator was aware of the contents of the Will. It is not correct to say that the benefit must be a pecuniary benefit, a legacy, for instance, more or less of a substantial nature. The same principle was reiterated in Vellaswamy Servai & Ors. vs. L. Sivaraman Serivai, AIR 1930 PC 24, wherein it was observed that: where the propounder of a Will is the principal beneficiary under it and has taken a leading part in giving instructions for the execution of the Will and procuring its registration and execution, the circumstances are such as would excite the suspicion of any probate Court and require it to examine the evidence in support of the Will with great vigilance and scrutiny. The propounder is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the Will. Laying down the same principle, the Apex Court in H. Venkatachala Iyengar vs. B. N. Thimmajamma & Ors., AIR 1959 SC 443 held that there may be cases where the propounders themselves take a prominent part in the execution of the Will, which confer on them substantial benefits. In such case, it is itself generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. 3.6. In Sarat Kumari Bibi, 56 Ind App 62 : AIR 1929 PC 45 (supra) relied upon in Venkatachala lyengar, 1959 Supp.(l) SCR 426 : AIR 1959 SC 443 (supra), it was found that one Jamaluddin who took benefit under the Will, had taken an active part in the preparation of the Will, and, therefore, applied the rule made by Lindley and Davey L. JJ., in Tyrrell vs. Painton, 1894 P. 151 at pp. 157, 159 that where circumstances exist which would excite the suspicion of the Court, the burden is upon the propounder of the Will to remove such suspicion and prove affirmatively that the testator knew and approved of the contents of the document. The extent of proof: 3.7. The nature of proof required to prove a Will is not different from those required to prove other documents except the requirement of attestation prescribed under section 63 of the Indian Succession Act. The proof is to be tested on the usual satisfaction of a prudent mind. What distinguishes a Will from other document is that the testator would not be available to testify the same as his last will. This introduces an element of solemnity in the decision. Even then the Court has to proceed with the enquiry in the same manner as is done in respect of any other document. The propounder is called upon to show by satisfactory evidence that (1) the Will was signed by the testator in the presence of two attesting witnesses; (2) at the relevant time he was in sound and disposing state of mind; (3) he understood the nature and effect i.e., the content of the disposition; (4) he put the signature to the document of his own free will. The onus of the propounder can be said to be discharged on proof of the above essential facts. 3.8. However, in a case surrounded by suspicious circumstances viz.: the disposition may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or there may be indications that the disposition was not the result of the testator's free will and mind. Such suspicious circumstances make the initial onus very heavy; and unless satisfactorily discharged, the Court would be reluctant to treat the document as last Will of the testator. Where the propounder takes a prominent part in the execution of the Will conferring benefit upon him, that itself is a suspicious circumstance attending the execution of the Will; this the propounder is required to remove by clear and satisfactory evidence. In other wards the propounder must satisfy the conscience of the Court that the document is the last Will and testament of the testator. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even if there is no such plea but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. If the propounder is able to satisfy the conscience of the Court, the Court shall grant the probate, even if the Will might be unnatural, improbable and might cut off wholly or in part near relations. It is the will of the testator that is reflected in the Will. It is the testator's own property, which he has the liberty to deal with absolutely. It is not for the Court to find out justification or equity or otherwise in the action of the testator. It is not for the Court to make it fair or to sermonize. It is not for the Court to refuse the grant on account of the fact that the disposition is not just and fair or is unnatural or improbable when the conscience of the Court is clear about the proof of the execution of the Will on the face of the evidence satisfactorily sufficient to remove the suspicious circumstances. 3.9. The English Courts often mention the test of the satisfaction of judicial conscience. This is also followed by the Courts in India. The reference to judicial conscience in this context is a heritage from similar observation made by ecclesiastical Courts in England when they exercised jurisdiction with regard to the Wills. Any objection to the use of the word 'conscience' in this context would be purely technical and academic, if not pedantic. The test merely emphasizes that in determining the question as to whether the instrument produced before the Courts is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. No hard and fast or inflexible rules can be laid down for the appreciation of the evidence adduced by the parties. Generally a propounder of the Will has to prove the due and valid execution of the Will. If there are any suspicious circumstances surrounding the execution of the Will, the propounder must remove the suspicion from the mind of the Court by cogent and satisfactory evidence. The result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and proof of execution of the Will on the appreciation of the evidence. Relying on the decision in Harmes vs. Hinkson, 50 OWN 895 : AIR 1946 PC 156, the Apex Court in Venkatachala Iyengar (supra) observed that "where a Will is charged with suspicion, the rules enjoin a reasonable skepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". 3.10. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant cautious and circumspect. In laying down these principles, the Apex Court had thought it pertinent to rely on Williams on "Executors and Administrations", Vol. I, 13th Edn., page 92 where it was observed in the text book that "generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of the Will having been read over to the testator or of instructions having been given is not necessary....... Although the rule Roman Law that 'Qui se scripsit haeredem' can take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstances which ought generally to excite the suspicion of the Court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased". 3.11. The same principle was enunciated in Ramchandra Rambux vs. Champabai & Ors., AIR 1965 SC 354. While dealing with the nature of proof required in such a case, the Apex Court in this case relied on the observation made in Venkatachala lyengar (supra) viz: "As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters." 3.12. In case the bequest appears to be unnatural, then the Court has to scrutinize the evidence in support of execution of the Will with a greater degree of care than usual, because every person must be presumed to act in accordance with normal human behaviour but there is no gainsaying the fact that some individuals do behave in an abnormal manner. It was so observed in Sushila Devi vs. Pandit Krishna Kumar Missir & Ors., AIR 1971 SC 2236. 3.13. If the various requirements of a valid Will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga vs. Jamsedji Hormusjee Kanga, 80 IC 777 : 26 BLR 579 : AIR 1924 PC 28 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 influence, excessive persuasion or moral coercion, it lay upon him to establish that case.......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." The citations : The principles repeated :;