JUDGMENT Om Prakash, J.
1. This is a first appeal from the order dt. 3-5-1976 of the learned District Judge, Dehradun which he passed on the petition that was moved by Smt. Sushila Devi one of the daughters of the deceased Smt. Jivini Devi for grant of letters of administration for the estate of the aforesaid deceased.
2. In the said petition, the applicant contended that the testator, namely, Smt. Jiwani Devi executed a will dt. 12-1-1965 in favour of her and her two more sisters, namely, Smt. Viddyawati and Smt. Bala Sundri. One Sri Ved Prakash who is the son of Smt. Viddyawati, filed a written statement stating that the will dt. 12-1-1965 was not a genuine document and that was obtained by the beneficiaries under coercion, undue influence and misrepresentation. Me contended that the testator executed a will dt. 17-2-1965 in his favour and that alone is the enforceable and operative document.
3. The learned District Judge framed the necessary issues and came to the conclusion that both the wills dt. 12-1-1965 and 17-2-1965 had been duly executed and. therefore, the second will dt. 17-2-1965 had superseded the first will. It is for this reason, the petition for grant of letters of administration for the estate of the deceased Smt. Jiwani Devi on the basis of the will dt. 12-1-1965 made by the applicant Smt. Sushila Devi, was dismissed.
4. Aggrieved by the said order, Smt. Sushila Devi has filed the instant appeal. I have heard learned counsel for the parties at considerable length. The submission of learned counsel for the appellant is that that District Judge erred in holding that "It is obvious that Sri Ved Prakash and/or his mother must have entreated in the intervening period to persuade Smt. Jiwni Devi to modify her earlier decision. But there is no evidence or circumstances to lead to an inference that Smt. Jiwni Devi executed the will without understanding it or under any undue influence."
It is submitted for the appellant that the first will dt. 12-1-1965 depicted a more probable, natural and equitable arrnagement by the testator. It is said that in ordinary course, Smt. Jiwani Devi would have taken care of all the three daughters equally and she would have bequeathed her property to all her daughters, as she did under the first will dt. 12-1-1965 and that the second will dt. 17-2-1965 is wholly suspicious arrangement and that the whole benefit under that will was given to Ved Prakash, the son of one of the daughters of Smt. Jiwani Devi. It is argued that the arrangement in the second will dt. 17-2-1965 would have been made by the testator only under the exceptional and extraordinary circumstances which have not been pointed out in this case at all. It is, therefore, argued that to show the free consent, fit mental condition and free will of the testator, the respondent 3 should have removed the entire suspicious circumstances and that the suspicion could not be removed merely by the fact that the second will dt. 17-2-1965 was proved to have been signed by the testator. On the other hand, the submission of learned counsel for the respondent 3 is that the testator used to reside with Ved Prakash and his mother Smt. Viddyawati and that Ved Prakash alone took care of the testator and the remaining daughters of the testator having resided at far off places were neither inclined nor were they in a position to take care of the testator and therefore, the arrangement under the first will dt. 12-1-1965 was not natural and probable, but was a result of undue" influence, coercion and misrepresentation. The matter has to be seen in the light of the aforesaid facts. I find force in the submissions of the appellant on that on the facts and circumstances of the case it would have been more natural or probable or equitable for the testator to execute the will in favour of all the three daughters. The arrangement under the second will dt. 17-2-1965 is neither equitable nor natural and, therefore, the respondent 3 should have established the extraordinary circumstances in which the testator would have thought to bequeath her property in his favour. No evidence to show the exceptional circumstances is there on record. So far as the fact that the testator resided with Ved Prakash is concerned, this cannot be said to be the unique feature of this case, as the testator resided with Ved Prakash even from before 12-1-1965, when the first will was executed. Had it been so crucial consideration to bequeath the property in favour of Ved Prakash, then th'e testator would have done so right in the beginning. I do not see any substance in the argument that the first will is a result of undue influence, coercion or misrepresentation, because the three daughers of the testator would have anticipated or expected the arrangement in ordinary course which was made in the first will dt. 12-1-1965 and there was no need for them to resort to any manoeuvring or manipulation or to exercise undue influence over the testator. This circumstance was not taken note of by the learned District Judge and, therefore, he erred in holding that no undue influence was exercised by Ved Prakash in getting the second will executed. Though not impossible but direct evidence of undue influence, coercion or misrepresentation is very difficult in most of the cases and the instant case is the one in which an undue influence on the part of Ved Prakash could be gathered only by the circumstances. The Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 observed that the condition of the testator's mind may appear to be very feeble and debilitated, and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator, simply by the fact that the signature of the testator was proved on the will. The Supreme Court continued to observe that the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. Having so observed the Supreme Court said : --
"In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as last will of the testator."
In the instant case, the suspicion which has arisen from the execution of the second will dt. 17-2-1965 has not been removed by any cogent material and this important aspect of the case was not taken into account by the learned District Judge.
5. Having given my anxious thought, to the facts and circumstances of the case, I unhesitatingly hold that the second will dt. 17-2-1965 was not a result of the fit mental condition, free will and free consent of the testator, but it resulted from undue influence that was exercised by the respondent 3 over the testator to take the entire benefit to himself.
6. In the result, the order dt. 3-5-1976 is set aside and the petition of the appellant is allowed. The letters of administration for the estate of the deceased Smt. Jiwani Devi on the basis of the will dt. 12-1-1965 will be issued by the trial Court in favour of the appellant, Smt. Bala Sundri and Smt. Viddyawati who is represented by her son Ved Prakash. No order as to costs.