The Allahabad High Court has held that the advanced age of a testator, taken together with the fact that the son in whose favour the Will was made was looking after him and his property, does not by itself raise a presumption of undue influence. It held that a registered Will, which carries a presumption of validity, cannot be cancelled on that ground alone.

Justice Siddharth Nandan held,

“The question of a dominating position or fiduciary relationship, depends upon the facts of each case and merely because there was relationship of a father and son, while the father being of old age, cannot itself automatically be inferred that the son was in a dominating position.”

The Court held that the burden of proving undue influence rests on the person who alleges it, and that being in a position to influence a testator is not the same as having exercised that influence.

Relying on Savithri and others v. Karthyayani Amma and others and Swarnalatha and others v. Kalavathy and others, it held that a Will is made in order to alter the ordinary course of succession, so the exclusion of a natural heir is not by itself a suspicious circumstance. It held that it is no part of the court's function to examine whether a testator's distribution was fair.

“In the society in which we all are living, there is still a hope in the form of a joint family and parents take care of their children, till the fag end of their life and in reciprocation, the parents are given equal respect and due care by the younger ones in the family; and as such an ipso facto conclusion cannot be reached by merely considering the relationship of father and son, where the father is of old age.”

The plaintiff, Bhanu Datta Pathak, grandson of the testator Shankar Dutt Pathak, sued for cancellation of a Will dated 06.12.1971 executed in favour of the testator's son, defendant no. 1 Hari Dutt Pathak, and for partition of his half share in the property. The testator died on 06.05.1972, six months after executing the Will. The plaintiff, a central government servant who was Director, Central Ground Water Board, Lucknow when the suit was filed, lived away from the village and learnt of the Will when the defendant applied for mutation on its strength.

It was argued that the testator had written to the plaintiff regularly from 1949 until his death and had accepted small money orders from him. It was submitted that relations between them were cordial, and that in old age he had become feeble and wholly dependent on the defendants. The plaintiff contended that the Will gave no reason for disinheriting him, that its recitals about his failure to look after the testator and the house showed that the testator had been pressurised, and that the Will was obtained by fraud in collusion with the witnesses, the scribe and the Sub-Registrar. The challenge to the testator's signature was given up during argument.

The defendants argued that the testator had paid for the plaintiff's education, including sending him to America for higher studies, and that after entering government service in 1949 the plaintiff separated from the family and did not keep his mother, who lived with the defendants and died in the village. They pleaded that the testator read the Will himself, signed it before two attesting witnesses and had it registered, and that it was never kept secret.

The Trial Court cancelled the Will, holding that the testator was not in a sound disposing state of mind and that the Will was executed under the undue influence of defendant no. 1. It relied on the absence of any attesting witness from the village, the absence of proof that the deed was read over to the testator, and a presumption of a fiduciary relationship between father and son.

The First Appellate Court reversed that decree, holding that the testator had lived for six months after the Will and written letters in that period. It held that it was the defendants who cared for him, and a registered Will could not be cancelled on conjecture.

The second appeal was admitted in 1980 on four substantial questions of law.

The Court held that the failure of the first appellate court to frame points for determination under Order XIV Rule 1 CPC had caused the plaintiff no prejudice. It held that the test is whether the parties went to trial knowing that a particular question was in issue and had the opportunity to lead evidence on it, and both conditions were satisfied here.

“once the plaintiff and the defendant are aware of the issues and the grounds which are being sought to be raised, in relation to a relief being claimed, and they have led evidence on the said issue, the mere procedural irregularity of not following the mandate of Order XIV of CPC, itself cannot be a ground to vitiate the finding of fact and the decision on merit by the court.”

On Section 63 of the Indian Succession Act, 1925, the Court held that the provision requires attestation by two or more witnesses and does not require them to be from the testator's village, or to be co-sharers or relatives. DW-2, the scribe, had also signed in the column of attesting witnesses and deposed that the testator read the Will and signed it in his presence before asking him to attest, that the other witness signed in his presence as well. It observed that he accompanied the testator to the Sub-Registrar's office. Nothing in his cross-examination contradicted that account, noted the Court.

Relying on Mathew Oommen v. Suseela Mathew and Seth Beni Chand v. Kamla Kunwar, the Court held that a scribe whose name and signature appear in the column of attesting witnesses is a competent attesting witness. It held that the requirement of Section 63 was met.

On testamentary capacity, the Court noted that the plaintiff had led no evidence that the testator was under medical treatment when the Will was executed and had produced no doctor or vaidh, while his only witness on the point was found to be in litigation with the defendants. The testator had been a school teacher and had read the Will himself, it held.

“Merely because an individual is more than 80 of age, it cannot be presumed that he is so feeble as to not get a Will executed or that his mental capacity has diminished.”

The Court further observed that the letters the plaintiff had himself placed on record showed the testator writing about domestic matters and his own health in the six months he lived after executing the Will.

“In case the Testator was coerced to execute the Will and he was communicating for the next six months, post execution of the Will, in a mode by which he could have easily avoided the interference of the defendant, i.e. by way of writing various letters, he would have definitely stated in one of the letters that he has been coerced to execute the Will.”

Holding that the plaintiff had failed to establish that the beneficiary was in a dominating position or had misused his fiduciary capacity, the Court found no ground to interfere with the reversal by the First Appellate Court. It observed that it was not the plaintiff's case that the defendant had ever neglected the testator or misappropriated his property, and in the admitted family setup a bequest to the son the testator lived with followed naturally.

Accordingly, the second appeal was dismissed as against respondent no. 2/2. As against the remaining respondents, the appeal had already been disposed of by judgment dated 19.07.2022 in terms of a duly verified compromise, which was made part of the decree.