LexNARESH CHARAN DAS GUPTA versus PARESH CHARAN DAS GUPTA
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.. - 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 juris- diction 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 Gov- ernment. 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 foot- ing that no trial could be held by the Tribunal con- stituted under Ordinance XXIX of 1943. The juris- diction 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, JAGAN- NADHADAS 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 in- Huence. All influences are not unlawful. Persuasion, appeals to the affec- tions 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 Judi- cature 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 24- Parganas. M. C. Setalvad, Attorney-General for India, (Suku- mar 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
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