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High Court Appeal No. 12 of 1982, decided on 21st March, 1987.

‑‑‑S. 275‑‑Will‑‑Burden of proof‑‑Burden of proving that the testator was in sound disposing state of mind at the time of executing the will, held, was on the plaintiff‑‑Evidence Act (I of 1872), Ss. 101 & 102.

P L D 1958 S C 209 and Suryanarayanamuthi v. Surama and others P L D 1947 P.C. 400 ref.

‑‑‑S. 275‑‑Will‑‑No direct evidence available on record with regard to sound disposing mind of testatrix at the time of executing the will‑‑Plaintiff witness living on fourth floor of the house of testatrix and the beneficiary of will disposing that although weak, the testatrix appeared to be in full possession of her mental faculties and that could not find any abnormal trend in her thinking and conversation‑ Defence witness, a Priest on the contrary, specifically stating that deceased refused to make her last will because she said there was no need of it and that he used to visit her during her last illness quite frequently as she was living his next door‑‑No reasons why the statement of the Priest, who was a disinterested witness, be not believed which gave clear indication that the deceased was not in a disposing state of mind‑‑Nature of ailment of deceased, as brought on record and highlighted by Single Judge, leaving no escape from conclusion that she would certainly have been in a state of great pain and suffering‑‑Appellant, held, had, therefore, failed to prove that the will was executed by the deceased while she was in sound disposing mind.

‑‑‑S. 275‑‑Will‑‑Undue influence‑‑Deceased admittedly having spent her last days in a hopelessly declining state of health with the executor and the beneficiary, there could be no denying the fact that they were in a position to influence her decisions‑‑State of deceased's health was not such that she could freely move about and arrange for the writing of her Will if she really so desired and it was borne out from the evidence on record that deceased was entirely at the mercy of beneficiary and the executor of the Will at relevant time and unable of resisting their desire of signing the Will before Registrar‑‑Judged from every possible angle and in the face of facts proved on record, there was no escape from the conclusion that the deceased executed the Will under undue influence of the executor and the beneficiary‑‑Decision of Single Judge upheld.

S. Mushtaq Hussain for Appellants.

Raja Haq Nawaz for Respondents.

‑‑This is a High Court Appeal against the common judgment and decree of a learned single Judge of this Court whereby he has refused the request of the appellants r grant of a probate in Suit No. 289/70 and decreed the Suit No. 164/74 of the respondents against the appellants for cancellation of the Will dated 17th July, 1970 executed by Mrs. Lucy Dean in favour of respondent No. 1 abovenamed. The respondents have also filed cross‑objections.

2. The facts giving rise to this appeal are that Mrs. Lucy Dean, the mother of respondents No. 1 and 2 of deceased Kenneth Dean, the husband of the appellant No.l and the father of the appellants No. 2 to 8 died at Karachi on 30th December, 1970. She had executed a duly registered Will on 17th January, 1970 wherein the deceased Kenneth Dean was named as Executor and Mrs. Emerincia Dean, his wife (the appellant No.l abovenamed) as beneficiary. Late Kenneth Dean filed a petition for Probate of the Will in this Court (Misc. Application No. 12 of 1970) on 26‑2‑1970. The respondents filed Caveat objecting to the grant of Probate. It was thus, converted into a Suit being Suit No. 289/70. The respondents No. 1 and 2 filed a suit in the District Court, Karachi, which was registered as Suit No. 64/70 for cancellation of the said will and for declaration that their deceased mother Lucy Dean was a Benamidar. That suit was, later on, transferred to this Court and registered as Suit No. 164/74. It was contested by the appellants abovenamed and the Will made by the testatrix was claimed to be a valid will. The following issues were framed in Suit No. 289/70 which are as follows:‑--

"(1) Whether the Will of deceased Lucy Dean is a forged document

(2) Whether the said Will was obtained by coercion, undue influence and fraud Whether Lucy Dean was of sound and of disposing mind when the will was executed.

(3) Whether deceased Lucy Dean was not real owner of house on Plot No. 553/J.M. 3 Catholic Colony No. 2,' Karachi but was only a Benamidar, the real owner being her husband, late Peter Dean

(4) Whether deceased Lucy Dean had only a life estate in the said property and whether on her death the property was to devolve on her sons viz. the plaintiff and the two defendants as alleged in para. 6 of the plaint

(5) What relief, if any, is the plaintiff entitled to "

Both the suits were then tried, by consent of the parties, together and evidence was recorded in suit No. 289 of 1970. During the pendency of suits Kenneth Dean, plaintiff in Suit No. 289 of 1970 and defendant in Suit No. 164 of 1972, died. The present appellants have been brought on record as his legal representatives. By his impugned order the learned single Judge, as already stated, has disposed of both the suits.

Issues No. 1, 3 and 4 were decided in the negative while deciding the issue No.l he held that the Will was a product of undue influence. Both the suits have thus, been decided as stated above.

3. Mr. Mushtaq Hussain, learned counsel for the appellant, assailing the impugned judgment raised the following contentions:

(1) That the learned single Judge has wrongly concluded that at the time of execution of the Will the Testatrix Mrs. Lucy Dean did not have sound disposing state of mind and was not a free agent.

(2) That the appellants had led sufficient evidence to prove that the Will was executed by the Testatrix Mrs. Lucy Dean and that she was mentally capable to execute it out of her Free Will but the judgment overlooks the evidence of the appellants.

(3) The approach of the learned single Judge that because the appellant No.l had kept the deceased at her house, hence the deceased was under her influence is falicious.

(4) That there was no iota of evidence available on record that Mrs. Lucy Dean, testatrix was suffering from any mental infirmity.

4. Developing his argument on the first abovenoted point the learned counsel for the appellants vehemently urged that, firstly, Caveator Edwin Dean did not come in the witness box to support his case. He referred to evidence of Dr. Artisingo (Ex.84) and submitted that he has despite giving details of the illness of the deceased Lucy Dean nowhere even suggested that she was mentally infirm or suffered from any abnormal condition of mind. He then invited our attention to the affidavit of Mirza Rashid Baig, the resident of first floor of the house where the executor and beneficiary of the Will lived and submitted that he has in categorical terms stated "that although weak, Mrs. Lucy Dean appeared to be in full possession of her mental faculty and I could not find any abnormal trend in her thinking and conversation". The counsel, therefore, vehemently urged that notwithstanding the fact that the deceased was weak and suffering from illness and injury by far yet she was capable of disposing of her property by executing a Will. She was possessed of sound mind and fully capable of exercising influence in that behalf. He emphasized that it is the soundness of mind of the executor that has to be looked into and not the failing and unsound physical condition. Even the priest he so urged, did not say anything about her mental incapacity to understand the consequences of her act. In support of his contention the learned counsel for the appellant placed reliance on various decisions reported as P L, D 1956 Dacca 154, P L D 1947 P C 400, P L D 1949 PC 156 and P L D 1958 S C 209.

5. The counsel then submitted that the learned single Judge erred in drawing an inference adverse to the beneficiary and the deceased executor simply from the fact that the deceased was kept by them during her last days in their house. The assumption of the learned single Judge to the effect that the beneficiary had exercised an undue influence on deceased is without any evidence. He further contended that the conclusion drawn by the learned Single Judge from the fact that the deceased Mrs. Lucy Dean was weak and infirm and hence the love and affection accorded to her by the beneficiary and the deceased executed her Will was sufficient to hold that she was put to undue influence to make the Will in favour of the beneficiary. Lastly, he emphasised that the inconsistent and contradictory pleas taken by the respondents regarding the Will being a forged document or of its having been obtained undue influence were fatal to the maintainability of the respondents' objections to the grant of Probate.

6. Mr. Raja Haq Nawaz, learned counsel for the respondents, on the other hand, firstly, contended that the party relying upon the Will has to prove that the Will was executed and that the person executing the Will was capable to execute it. He referred to the evidence of the witnesses who were produced for proving the execution of the Will as a free agent without being any undue influence of the appellants and tried to point out that at various places they had contradicted each other. This fact, according to him, was sufficient to hold of the three witnesses as untruth witnesses. On the contrary, the evidence of P.W.1 and 2 fully supported the case of the respondents in every respect.

The counsel pleaded that the finding of the learned single Judge on the issue No.l, 3 and 4 were unsustainable. In his submission, learned single Judge has erred in assuming that a registered Will cannot be a forged one. He laid such emphasis upon the fact that neither the Sub‑Registrar nor his Clerk of even the Advocate who allegedly identified Mrs. Lucy Dean were examined and hence there was no evidence available on record for recording the finding that the deceased executor had actually put her signatures on the Will. On the contrary, Mr. Khurshid, the handwriting expert, had in unambiguous terms given an opinion that the signatures on the Will were not in the hand of the author. Even otherwise, the counsel so contended, the Will could not be held to be a genuine in the presence of said contradictory statements of the witnesses. The non‑disclosure of its execution even after the death of Mrs. Lucy Dean is a strong factor for arriving at a conclusion that it was obtained under undue influence. Moreover, the facts mentioned in the Will were sufficient to indicate that it could not be of a person who was on her death bed. He further pleaded that the deceased had great love and affection for Archie Dean and she had no reason to even think of depriving him of his share in the property in dispute after her death.

7. He cited the following reported judgments in support of his contentions (i) P L D 1947 PC 404, (ii) P L D 1949 PC 159, (iii) PLD 1975 S C 624, (iv) 1969 S C M R 531, (v) A I R 1939 PC 249 (vi) A I R 1925 PC 204, (vii) P L D 1969 Lah. 319, (viii) PLD 1967 Dacca 513 and (ix) P L D 1955 F C 95.

8. Having heard the arguments of the parties respective counsel and perusal of the relevant record as well as the depositions of parties, we have reached the conclusions for reasons to follow immediately,' that both the appeal as well as the cross‑objections must fail.

9. We shall first take up the said appeal which seeks to assail the impugned judgment of the learned single Judge on issue No.:2, namely, whether the Will of deceased Lucy Dean was obtained by undue influence and whether the said executrix was of sound and disposing mind when it was executed. The learned single Judge in appreciation of the evidence of Mr. Simcos (Ex‑84), D.W.1 Rev. Constencio Jocques, the Priest and on account of the failure on the part of the appellants to lead any evidence to establish that Mrs. Lucy Dean had obtained independent advice from persons of her choice and had got the Will prepared of her own free Will, reached the conclusion that it could not be established that it was voluntarily executed by her. He was also influenced by the fact that even the Registrar had not made any endorsement to the effect that he had asked questions to ascertain the mental capacity of Mrs. Lucy Dean at the time of execution of the Will. Moreover, the learned single Judge after elaborately narrating the facts and circumstances through which the deceased‑executrix passed the last days of her life under the exclusive and dominating control of her daughter‑in‑law. Emerincia Dean, the beneficiary, held that the Will was a product of undue influence. For arriving at this conclusion he referred to certain other facts and circumstances as are recorded in paras 9 to 15 of the impugned judgment.

10. Now it is well settled proposition of law that the burden of proving that the executor was in sound disposing state of mind at the time of executing the Will, is on the plaintiff. If any authority is required to be cited as reference may be made to P L D 1958 S C 209. Likewise the Privy Council in the case of Suryanarayanamuthi v. Surama and others P L D 1947 P C 400 has held, "that it is for the party propounding a Will to satisfy the conscious of the Court that the instrument propounded is the last Will of a free and capable testator and, secondly, that if a party writes .or prepares a Will under which he takes a benefit that in the circumstances that are generally to excite the suspicion of the Court".

11. Now what we find in the instant case is that there is no direct evidence available on record save a word of P.W. Mirza Rashidl Baig, to which we shall make a reference shortly, with regard to the sound disposing mind of Mrs. Lucy Dean at the time of executing the Will. And it was obviously for this reason that the learned counsel for the appellants had to rely upon the fact that even none of the witnesses examined by respondents including Dr. R.T. Simcox, in his certificate (Ex.84) had said that Mrs. Lucy Dean was not in a sound state of mind. In this connection he also referred to the evidence of D.W. Rev. Constncio Joques, the Priest, to urge that even this witness did not say anything about the mental infirmity or abnormal condition of mind of Mrs. Lucy Dean. On the contrary P.W. Mirza Rashid Baig, who lived on the fourth floor of the house of (late) Kenneth Dean and Mrs. Emerincia Dean, the executor and the beneficiary respectively of the Will, has deposed; "That although weak, Mrs. Lucy Dean appeared to be in full possession of her mental faculties and I could not find any abnormal trend in her thinking and conversation". It is thus evident that there is no direct evidence to show that Mrs. Lucy Dean had a disposing mind what to say of "sound disposing state of mind". In his evidence the D.W.1 Rev. Constancio Joques Priest, on the contrary, has specifically stated to the effect "that late Lucy Dean refused to make her Last Will, because she said there was no need of it as Archi could settle her property equitably among the three brothers". This witness has further deposed that he used to visit her during her last illness in Dec. 1969 quite frequently, since she was living his next door. There is no reason that why this statement of the Priest, who is a disinterested witness, be not believed. This gives a clear indication that the deceased Mrs. Lucy Dean was not in a disposing state of mind. Now with the nature of ailment of the deceased as has been brought on record and highlighted by the learned single Judge in his impugned order, there is no escape from the conclusion, as rightly observed by the learned single Judge, that "she would certainly have been in a state of great pain and suffering". Under the aforesaid facts and circumstances and for the foregoing reasons stated above, we hold that the appellant has failed to prove that the Will was executed by Mrs. Lucy Dean while she was in sound disposing mind.

12. This leads us to the second aspect of the matter, namely, whether Mrs. Lucy Dean had voluntarily executed the Will after clearly understanding its contents or that it was on account of undue influence of the Kenneth Dean, the deceased executor and Mrs. Emerincia Dean, the beneficiary, which remains to be examined. No doubt the burden of proof of Mrs. Lucy Dean's being under the undue influence of the executor and the beneficiary is upon the respondents. She admittedly spent her last days in a hopelessly declining state of health with the executor and the beneficiary abovenamed. There can thus be no denying the fact that they were in a position to influence her decisions. Her state of health as already pointed out, was not such that she could freely move about and arrange for the writing of her Will of really she so desired. In the instant case, however, it is to be deduced from the overall appreciation of the facts and circumstances.

13. It is also evidently borne out from the evidence on record that the deceased was entirely at the mercy of Mrs. Emerincia Dean, the beneficiary, and Kenneth Dean, the executor of the Will at the relevant time. She was thus, obviously unable of resisting their desire of signing the Will before the Registrar. The other circumstances taken not of by the learned single Judge also are very material and we would refrain to repeat them as we are in agreement with him in that regard.

14. Judged, therefore, from every possible angle and in the face of the facts proved on record there is no escape from the conclusion that Mrs. Lucy Dean executed the Will under the undue influence of late Kenneth Dean and Mrs. Emerincia Dean, the beneficiary.

15. We would, therefore, uphold the decision of the learned single Judge in this respect as well. .

16. Now we proceed to consider ‑the cross‑objections filed by the respondents against the judgment of the learned single Judge on issues No.l, 3 and 4.

17. Making his submissions on issue No.l, the learned counsel for the respondents submitted that the evidence of D.W. Khurshid Ahmed, handwriting expert, should have been accepted when he opined that the signature on the will is not the signature of Mrs. Lucy Dean as it did not tally with her admitted signatures. In his submission, the learned single Judge rejected the evidence of the handwriting expert without cogent reasons.

Upon comparison of the signatures of Mrs. Lucy Dean on the Will with her admitted signatures available on record we have not the least hesitation in agreeing with the learned single Judge that the signatures on the Will were that of Mrs. Lucy Dean. We do not, therefore, find any merit in the grievance of the respondents. The objection, therefore, stands ruled out.

18. The next objection of the respondents is against the finding of the learned single Judge that Mrs. Lucy Dean was the real owner of the house in dispute and that she was not a Benamidar as asserted by the respondents. He sought to place reliance on the affidavit of Archie Dean, the respondent No.l, wherein he has deposed that his father late Peter Dean was a highly qualified officer in Naval Services and retired from Merchant Navy as Chief Engineer on or about 21‑8‑1981 and that since he had great love for his wife, Mrs. Lucy Dean, he used to send all his earnings to her for building a house for his family. Mrs. Lucy Dean, the counsel further urged, had no source of income except that of her husband, Peter Dean and she was financially unable to construct the said house. He also sought to support his contention from the evidence of D.W.1 Rev. Constancio Jocques who had deposed that Mrs. Lucy Dean refused to make Will by saying that Archie Dean could settle her property equitably among the three brothers. We are not impressed by the argument of the learned counsel for the respondents in the presence of overwhelming documentary evidence supporting the financial position and ownership of Mrs. Lucy Dean. Mrs. Lucy Dean's name appeared in the records of Karachi Catholic Co‑operative Housing Society as well.

19. There is no evidence available on record on the basis of which the real character of the property as appearing in the relevant record of rights could not be accepted. The cross‑objection on this issue also fails.

20. The finding of the learned single Judge on issue No.4 is based on his appreciation of the facts while deciding the issue No.3, and hence the objection of the respondents against the decision of Issue No.4 also stands repelled.

21. The appeal as well as the cross‑objections are dismissed with no order as to costs.

S. Q./E‑4/K Appeal dismissed.

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