Mrs. Lucy Dean died at Karachi on 30th January, 1970 leaving a Will dated 17-1-1970 in which his son Kenneth Dean was appointed an Executor and Emerincia Dean his wife was the beneficiary. The testatrix had left behind three sons, namely, Kenneth Dean, Edwin Dean and Archie Dean and all of them were excluded from the Will. Kenneth Dean as executor filed petition for probate of the Will under section 276 of the Succession Act, 1925. Archie Dean and Edwin Dean filed caveat objecting to the grant of probate mainly on the ground that the Will is forged or that it has been obtained by undue influence and further that the testatrix was a benami and had no right to execute the Will excluding her sons. In view of this caveat and contest the matter was treated as a Suit. During the pendency of these proceedings Kenneth Dean died and his legal heirs, namely, Mrs. Emerincia Dean the beneficiary his daughters and sons were brought on record as petitioners.
2. Archie Dean and Edwin Dean filed a suit in the District Court Being Suit No. 460/70 for cancellation of the Will and for declaration that Mrs. Lucy Dean was a benamidar. The suit was transferred to this Court and registered as Suit No. 164/72. The plaintiffs in the present suit filed a written statement denying all the allegations and relied on the will made by the testatrix and pleaded that it is a valid Will. In Suit No. 289/70 the following issues were framed :-
(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 paragraph 6 of the plaint ?
(5) What relief, if any, is the plaintiff entitled to ?
The parties have agreed that both the suits should be decided on the basis of the aforestated issues. Both the suits were tried together and common evidence was recorded in Suit No. 289/1970.
This judgment will dispose of both the suits.
3. Issue No. 1-The defendants have contended that the Will was not executed by Mr. Lucy Dean and the same is a forged document. In this regard both the parties have led evidence. The main dispute between the parties relates to house on Plot No.- 553/JM 3, Catholic Colony No. 2, Karachi.
The plot of land was first allotted to Mrs. Lucy Dean on which a house was constructed. In the lease, the record-of-rights and the records of the society Mrs. Lucy Dean has been shown as the owner of the property. Archie Dean continued to the nominee of Mrs. Lucy Dean in the records of the Society.
In the year 1950 when Mrs. Lucy Dean remarried and had gone to Bombay the property was transferred in the name of Archie Dean but when she came back to Pakistan the property was again re-transferred in her name. The defendants have led evidence to show that Mrs. Lucy Dean was residing with Archie 'Dean and on 16th December, 1970 she had been shifted to her house, namely, the present house in dispute which was across the road.. At that time she was not well suffering from various ailments Land was very weak. ' On 25th December, 1970 Emerincia Dean visited Mrs. Lucy Dean and took her to her residence at PECHS. No doubt in the past there had been disputes between Mrs. Lucy Dean and her sons but it seems that after 1960 at, least matters with Archie Dean had settled down. From the, evidence it also seems that Mrs. Lucy Dean had dispute with Edwin Dean and there were litigations in the past between the mother and the son in respect of possession of the property and even reports were lodged for breach of peace. The defendants have also led evidence to show that Kenneth Dean from the very beginning wanted to grab the property and at the time when Mrs Lucy Dean had gone to India and the property had been transferred in the name of Archie Dean, Kenneth Dean demanded his share and being unsuccessful lodged complaint for declaring the property as evacuee. The defendants have further led evidence to show that Kenneth Dean and his family members were not interested in the maintenance and welfare of Mrs. Lucy Dean who ,used to live in her house or with Archie Dean. In this background Mrs. Lucy Dean had been taken away by the beneficiary and within _a period of one month and 5 days thereafter Mrs. Lucy Dean died in the hospital. However, during that period she remained with Kenneth Dean. In the light of these facts the defendants have alleged that Mrs. Lucy Dean would never have executed a Will in favour of Emerincia Dean to the exclusion of his sons and it is contended that the Will is a forged one. These facts may compel to consider whether in .These circumstances a Will could have been executed by Mrs. Lucy Dean in favour of Euierincia Dean. But if it is proved that in spite of these circumstances a Will had been executed then it cannot be termed as a forged Will. The defendants have produced a Handwriting Expert to state that the signature on the Will is not the signature of Mrs. Lucy Dean as it does not tally with the admitted signatures. The admitted signatures were made sometime in the past when Mrs. Lucy Dean was not in the state of health with which she was suffering on 17th January, 1970. From the medical evidence it is clear that she was terribly weak and the doctor who had examined her three days after the execution of the Will had informed that she was not to live for more than a few days.
She was suffering from a very advanced Osteo-Arthritis of the twelve-th Dorsal Vertibrae with Deformity Dorsaly Spine. She was extremely weak with conjustive heart failure. It was in this state of health that the Will is said to have been executed. There is no evidence to rebutt that 3 days before Mrs. Lucy Dean was in a better health or that between 17th and 20th something had happened causing sudden deteriorates which. Compelled the doctor to opine that she will not live for more than few days. In such state of infirmity, weakness, disability and conjustive heart failure condition there is every likelihood that there may have been termor stoppages, and incoherence in the signature. The state of health particularly when it is weak and infirm, is likely to effect, the handwriting also. I am, therefore, not inclined to accept the opinion of'' the handwriting expert that the Will was not executed by Mrs. Lucy Dean. The most strong circumstance in this regard is that it is a registered Will which was executed before the Registrar who had come and witnessed the execution by Mrs. Lucy Dean who was sitting in a taxi. This was attested by Watson who has been examined by the plaintiff. One Advocate had identified Mrs. Lucy Dean before the Registrar but he has not been examined. No doubt there are glaring contradictions in the statement of Watson to discredit his testimony but at least he is consistent on the fact that the Will was executed before him in the presence of the Registrar and was accordingly registered. The fact that the Will has been registered and executed before the Registrar lends a strong support to the contention that the Will is not a forged Will. My, finding is therefore in the negative. ,
4. Issue No. 2.-This is an alternative issue raised by the defendants challenging the Will on the ground that the Will was obtained by coercion, undue influence and fraud and that Mrs. Lucy Dean was not of sound and disposing mind when the Will was executed.
5. Before considering the facts the principle of burden of proof for such issues has to be determined. Mr. Raja Haq Nawaz the learned counsel for the defendants has contended that it is for the plaintiff to prove that Mrs. Lucy Dean was of sound mind and. The Will was executed of her free Will. Reliance has been placed on PLD 1947 P C 400, PLD 1948 P C 40 and PLD 1949 P C 156. Mr. Mushtaq Hussain the learned counsel for the plaintiff relying on PLD 1949 P C 156, PLD 1958 SC 209 and PLD 1964 SC 329 contended that onus is upon the person who alleges that the executant did not have the capacity to execute the Will and it was obtained by undue influence. The answer to these contentions is found in Chiragh Bibi's case reported in PLD 1958 SC 209 where it was held that the party propounding the Will has to establish that it was executed in a sound disposing state of mind, the burden of proving that the will resulted from coercion and undue influence is on the party who alleges it. Execution of Will is not necessarily proof of voluntary executionor the state of mind of a testator at the time of execution. One who seeks probate of will should first establish that the Will has been executed by the testator and further that the testator was in a sound disposing state of mind. Once this burden has been discharged the burden of proving that the Will was obtained by fraud) coercion or undue influence is upon the party who seeks to challenge the Will on these grounds.
6. The material facts relating to the execution of the Will have been stated under Issue No. 1. Some more facts which have been brought to evidence may be referred here. This is an admitted position that from 25th December, till Mrs. Lucy Dean was admitted to hospital on 29th January, 1970 she had been with the plaintiffs. It is also not disputed that the doctor had on 20th January, i.e. 3 days after the execution of the Will examined Mrs. Lucy Dean and stated that she would not live for more than few days. The opinion of the doctor is contained in Exh. 84 which is reproduced here under .-- "Mrs. L. Dean (deceased) aged 74 years, consulted me on the 20th of January, 1970. The X-Rays taken showed her to have a very advanced osteo-arthritis of the 12 dorsal vertebrae. Further she bad marked anterior deformity, but the density of the shadows at the hila of her lungs could not be accounted for wholly by the deformity of the dorsal spine. She was, on further examination extremely weak with congestive heart failure and I gave my opinion to her eldest son, that her advanced pathology would not permit her life to go on for more than a few days. I further advised him to take her home and to keep her comfortable, She died at the Holy Family Hospital, on the 30th of January, 1970."
7. The state of health as described by the doctor gives a gloomy picture of Mrs. Lucy Dean's condition who was 74 years of age. She had not only been suffering from the diseases described above but during the period or some days before she had been a victim of the fall with injuries. She would certainly have been in a state of great pain and suffering during this period. In these circumstances the burden was upon Emerincia Dean hereinafter referred as the plaintiff to prove that Mrs. Lucy Dean had executed the Will voluntarily and was in a sound disposing state of mind.
8. Archie Dean hereinafter referred as the defendant has stated that he had been looking after and attending his mother and had enjoyed her confidence from the very beginning inasmuch as in the year 1950 when she went to Bombay, the property was transferred in his name. It has also been pointed out that again on her return in good faith and like an honest man he re-transferred it to her. The defendants have examined Costancio Jacques, the Priest, who has stated that he had gone to see Mrs. Lucy Dean while she was staying at the house of Kenneth. He had visited her as it was his duty to see sick persons of his community and to help her. Spiritually to die a good death and to suggest to her that she should make her last Will in favour of her three sons but she refused to make her last Will because she said that Archie would settle equitably among his brothers. It may be mentioned that Archie Dean was the nominee of Mrs. Lucy Dean in the records of the society. This shows the state of mind of the deceased during the period she stayed with the plaintiff. Rev. Constanis Joques-is a priest and is a disinterested person. He had visited Mrs. Lucy Dean in the end of December, 1969 and at that time Mrs. Lucy Dean was not prepared to make a Will in respect of her properties. What happened in a few days time that Mrs. Lucy Dean who had so much faith in Archie Dean completely changed her opinion and executed a Will in her last days excluding his was including Archie Dean.,
9. The plaintiffs on the other hand have a different story to tell. According to them Mrs. Lucy Dean had been removed in her house by Archie on X-Mas Eve. She was suffering terribly and was in great distress and pain, and she was feeling lonely. Emerincia went on X-Mas Day together with her daughter and brought her in her house where she states that she looked after Mrs. Lucy Dean and all his family members treated her well and gave comfort and medical care. In spite of all this the state of health as described by the doctor cannot be denied. If these facts are taken to be correct it is clear that Mrs. Lucy Dean who had been suffering and had been taken away by the plaintiff No. I and treated well at a time when she was weak and infirm it is likely that the plaintiffs who had treated her with love and affection may have influenced her. Generally a person who is suffering is amenable to the influence of another person than one who is not suffering. This amenability is increased if the other person is viewed , by the sufferer as someone who could bring him some measure of relief. ': he more the suffering whether it be physical, psychological, anxiety o_ depression the greater the likelihood that a person will be influenced. In then circumstances the amount of pressure that has to be procured to produce this influence is less. In these circumstances when the plaintiff No. 1 and her husband were in a dominant position who have secured unfair advantage, presumption of undue influence will arise. The plaintiffs have examined Miria Rashid, their landlord who k -is stated that he had visited Mrs. Lucy Dean and found her in full mental facilities. He however states that when he saw her in the end of December 1969 she was in a precarious condition. In view of the medical certificate and considering the condition of Mrs. Lucy Dean it is difficult to rely upon the observation of a layman. Further his statement does not relate to mental state on 17th January, 1970 when the Will was executed.
10. The plaintiffs have not led any evidence to prove that Mrs. Lucy Dean had obtained independent advice from persons of her choice and had got the Will prepared of her own free Will. Emerincia has stated that she is not aware how the Will was prepared. Watson is also not aware of this fact and he merely states that he was called by Kenneth Dean to be a witness of the Will. The fact remains that Mrs. Lucy Dean was in such an infirm state that she could not walk and was sitting in the taxi where the Registrar had been called. Even the Registrar has 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. The only endorse--ment is that Mrs. Lucy Dean aged 74 years admits the execution before the Registrar. There is nothing to show that the contents of the Will were at any time read over and explained to Mr. Lucy Dean by the plaintiffs No. 1 even by the Registrar. In Parikh Atmaram Maneklal v. Bai Hira PLD1948PC40, where a gift was executed by a pardanashin widow, daughter-in-law in favour of her father-in-law it was held that mere reading of the Will was enough to prove that it was explained and terms were understood. In the circumstances of the case it is difficult to believe. That Mrs. Lucy Dean was aware of the contents of the Will. Nor has it been established that it was voluntarily executed by her.
11. If a person has some .Influence over the other and by means of that influence he dominates the Will of the other to his subjection then such domination is sufficient to constitute undue Influence.
An old, aged and sick person whose days are numbered and who has been isolated from other, and is left to the mercy of his attendants is more easily amenable to undue influences. From the facts narrated above it seems clear that all avenue: of independent advice in matters of disposing of her property were closed to Mrs. Lucy Dean and the plaintiffs took full advantage of this situation.
12. Another circumstance that leads to the conclusion that the Will was a product of undue influence is that the deceased had never agreed to execute the Will in favour of any of her sons, and at the time when she was in a proper health and state of mind she had nominated Archie Dean as her nominee in the records of the Society. Archie in spite of being a nominee wrote a letter on 2nd February, 1970 informing the Society about the death of his mother and asked them to enter the name of all the three brothers as co-owners of the property. On the other hand Kenneth Dean during the lifetime of Lucy Dean did not inform any one about the Will, wrote a letter to the Society stating that the property has been bequeathed to his wife and the nomination of Archie Dean stands revoked. In these circumstances heavy burden lay upon the plaintiffs to prove that the Will was executed by Mrs. Lucy Dean voluntarily while she was in a sound disposing mind which they have failed to discharge.
13. The plaintiffs have solely relied upon the fact that the Will is a registered one and presumption should be drawn that it is legal and proper, This presumption is however a rebuttable presumption.
The proof of registration proceeding raises only the presumption that those proceedings were regular and honestly carried out and to some extent it proves execution, But in the circumstances of the case no presumption can be drawn that Mrs. Lucy Dean was in a proper mental state of health and that she had voluntarily executed the Will after clearly understanding its terms. And conditions.
Reference can be made to Faleh Muhammad v. Niamat PLD1955SC92, where following observation was made:- "It is true that mere registration can be considered in law, affording sufficient proof of the voluntary execution of the Will, much less of its being executed which of sound disposing mind by the testator, where there are circumstances of suspicion, it is the duty of the Courts to accept such evidence with great caution and only to the extent to which it goes."
14. Registration of the will may to some extent prove execution. It cannot by itself particularly where the Will has been challenged prove voluntary execution and sound disposing mind of the testator.
15. Undue influence has to be proved by specific evidence but case may arise where undue influence is not a matter always capable of direct proof. In such case as held in PLD 1958 Lah. 614 proof shall "depend upon conclusion to be drawn from the nature of the transaction itself and the circumstances in which it had its origin". In Inche Noriah v. Shaikh Allie AIR1929PC3, where the donor was not only an old lady of feeble health but was also entirely dependent upon the donee, her nephew, even for food and cloth; it was held that there was such relationship between them as would raise a presumption of undue influence being responsible for bringing about the gift. In cases where the validity of a Will is attacked on the ground of lack of testamentary capacity or undue influence the declarations of the testator made before it or after the making of the Will if not too remote are admissible for the sole purpose of evidencing the testator's mental state at the time of the execution of the Will. Sufficient evidence has been brought on record to show the physical and mental state of Mrs. Lucy Dean and the surrounding circumstances in which she was living at the time of execution of the Will. This clearly establishes that the Will was a product of undue influence.
16. Issue No. 3.-From the records of the Society, extracts register and record of the C. D. C: it is established that Lucy Dean was owner of the property.
17. Mr. Raja Haq Nawaz the learned counsel has referred to one letter of the maternal-uncle of Kenneth Dean and Archie Dean that the husband of Lucy Dean used to send the money for purposes of building the house. This is the sole evidence on the basis of which plea of benamidar has been raised. In my opinion it was for the defendants to have established that Lucy Dean was not the real owner. There is hardly any evidence worth the name to dislodge the fact that Lucy Dean has been the recorded owner of the property. My finding is in the negative.
18. Issue No. 4.-There is no evidence , on the point to suggest that. Lucy Dean had a life interest in the property. This issue is in fact connected with Issue No. 3. In view of my finding on Issue No. 3 in the negative, finding on this Issue is also in the negative.
19. Issue No. 4-A.- From the record of the society it is established that Archie Dean was the nominee of Mrs. Lucy Dean in the records of the Society. This nomination was cancelled by the Will which I have held to .Be a product of undue influence and therefore there was no valid cancellation.
However, Archie Dean has stated that he does not want the benefit of this nomination and his prayer is that the disputed property may be divided amongst the three sons who are the sole heirs of Mrs. Lucy Dean: In view of this statement in spite, of being a nominee in the records of the society Archie Dean has waived his right and the property shall be equally owned by the legal heirs of Mrs. Lucy Dean, namely, Archie Dean, Edwin Dean and heirs of late Kenneth Dean.
20. Issue No. 5.-In view of this discussion the plaintiffs' request for grant of probate is refused and the defendants' Suit No. 164/72 is decreed. The Will dated 17-1-1970 executed by Mrs. Lucy Dean in favour of Emerincia Dean is declared illegal and unenforceable in law. The Will has been produced on record and is cancelled.
There will be no orders as to costs.