Old age and a father-son fiduciary relationship alone do not establish undue influence invalidating a Will.

The plaintiff, Bhanu Datta Pathak, grandson of late Shankar Dutt Pathak, instituted a suit seeking cancellation of a registered Will dated 6 December 1971 executed by Shankar Dutt in favour of his surviving son, Hari Dutt Pathak, and sought partition of his alleged half share in the disputed property.

The plaintiff alleged that the property was ancestral, that the testator was approximately 81 years old and mentally and physically feeble, and that the Will had been procured through undue influence, coercion, fraud and collusion.

The trial court found that the Will was surrounded by suspicious circumstances, that the testator was not in a sound disposing state of mind, and that the defendants had failed to establish its genuine and voluntary execution; it consequently cancelled the Will and partly decreed the plaintiff’s claim for partition.

The first appellate court reversed that decision, holding that the Will had been duly proved through the testimony of an attesting witness, that the testator was mentally competent, and that the circumstances relied upon by the plaintiff did not establish undue influence or suspicious circumstances.

During the appeal, the plaintiff’s heirs and most respondents entered into a verified compromise; respondent no. 2/2 alone continued to contest the appeal on merits.

The Court applied Order XIV Rule 1 and Order XX Rule 5 CPC, holding that non-framing of a specific issue or point of determination is not fatal where the parties knew the controversy, had an opportunity to lead evidence, and suffered no prejudice.

Under Sections 61 and 63 of the Indian Succession Act, 1925, a Will must be the product of the testator’s free agency and must be signed and attested by at least two witnesses in the prescribed manner; under Section 68 of the Evidence Act, examination of at least one available and competent attesting witness is ordinarily sufficient to prove execution.

The Court relied on H. Venkatachala Iyengar v. B.N. Thimmajamma and Rani Purnima Debi v. Kumar Khagendra Narayan Deb for the rule that the propounder must prove due execution, testamentary capacity and removal of legitimate suspicious circumstances.

However, exclusion of a natural heir or an unequal disposition, without more, is not itself suspicious, particularly where the bequest is made in favour of a child who cared for the testator, as recognised in Savithri v. Karthyayani Amma, Mahesh Kumar v. Vinod Kumar, and Swarnalatha v. Kalavathy.

Undue influence must be proved as actual improper influence; a familial or fiduciary relationship and advanced age do not automatically establish it.

The Court held that the omission by the first appellate court to separately frame points of determination was only a procedural irregularity. The parties had fully understood that the validity, execution, testamentary capacity and alleged undue influence relating to the Will were in issue, had led evidence on those matters, and had made submissions; therefore, no prejudice was established.

On execution, the Court accepted the testimony of DW-2, who was an attesting witness and also the scribe. He stated that the testator read the Will, signed it in his presence, and thereafter directed him to sign as an attesting witness; he also stated that the other witness signed in the testator’s presence.

Since the scribe had signed in the capacity of an attesting witness and gave evidence satisfying the statutory requirements, Section 63 was held to have been complied with.

The allegation that the testator lacked testamentary capacity was not supported by medical evidence or reliable testimony. Conversely, DW-2 gave specific evidence that the testator understood and read the Will, acted voluntarily, and personally attended the registration proceedings.

The testator also continued to write letters to the plaintiff for approximately six months after execution, which supported the inference that he remained mentally alert.

Finally, the Court found that the beneficiary’s status as the testator’s son, his residence with and care of the testator, and the testator’s age did not by themselves establish domination or undue influence.

The Will gave a rational explanation for excluding the plaintiff: the plaintiff lived away due to government service, whereas Hari Dutt resided with the testator and looked after him and the family property.

The plaintiff failed to prove that the beneficiary had exercised improper influence or that the testator’s free will had been overborne.

The second appeal was dismissed on merits insofar as respondent no. 2/2 was concerned, and the judgment and decree of the first appellate court dated 28 August 1980 were upheld.

In respect of the remaining respondents, the appeal had already been disposed of in accordance with the verified compromise dated 19 July 2022, which was directed to form part of the decree.