Judgement Appeal from a decree of the Chief Court (June 17, 1907) reversing a decree of the District Judge of Hoshiarpur (December 16, 1902). The respondents sued for a declaration of their reversionary title to the estate of one Shib Singh, deceased, against his widow and others. The appellants relied on a will dated June 11, 1898, alleged to have been executed by Shib Singh. It was also pleaded that the deceased had adopted Harbans Singh, defendant, as his son and heir. The first Court found in favour of the appellants and dismissed the suit; but the Chief Court reversed that decision. The main question decided was whether the will was valid as having been duly executed. Shib Singh owned considerable zamindari property. He fell very ill about the month of May, 1898. His condition gradually became worse. On June 2, 1898, the District Judge of Hoshiarpur saw him in Court and recorded the following note " Shib Singh was brought in the Court. He is seriously ill and in a dying condition." During this illness Jawala Singh, father of Harbans Singh, defendant, and Bur Singh, defendant, attended on him. The respondents alleged that he was completely under their power and influence. They removed him from his home to several places for treatment. He died sonless on June 23, 1898, and his widow applied for mutation of names in her favour. The tahsildar investigated the matter of the will and ordered mutation as prayed, his order being affirmed by the Collector. In 1901 the respondents sued, alleging that Shib Singh was not in a sound disposing mind on June 11, 1898, and that the will was not voluntarily executed. They prayed for a declara tion of their reversionary right to succeed to the estate of the deceased on the death of his widow. The appellants relied on the will and pleaded that the bequest made to them was in recognition of services rendered by themselves and their ancestors to Shib Singh. Both sides produced oral and documentary evidence which was recorded by two District Judges, neither of whom decided the suit. A third District Judge delivered his judgment on perusing the evidence recorded by his predecessors to the effect that the will was voluntarily executed by Shib Singh while in his proper senses. Both sides produced oral and documentary evidence which was recorded by two District Judges, neither of whom decided the suit. A third District Judge delivered his judgment on perusing the evidence recorded by his predecessors to the effect that the will was voluntarily executed by Shib Singh while in his proper senses. The material passage of his judgment is as follows— " The first point is the factum of the will having been executed by Shib Singh when in his senses. The evidence on this point is very clear. Pandit Jagan Nath, a well-known pleader, who was apparently standing counsel of Shib Singh, deceased, was con sulted by him before his death. He was instructed by Shib Singh how to have the will written, and he advised him (Shib Singh, deceased) that it was not necessary to have it registered, and so it was under his advice that it was attested by respectable witnesses, and I see no reason to doubt the statement of Rev. Mr. Chatterji and Dr. D. N. P. Datta, now civil surgeon of Hoshiarpur, and they clearly state that Shib Singh was quite fit to understand the contents of the will, and it was read out to him, and the latter signed it as a witness. The English indorsement, Shib Singh is ill, but is in his senses, by Dr. D. N. P. Datta and Dr. Mehta Duni Chand, the then civil surgeon, since dead, shews that they were told to go, that the deceased was in his senses, and was not being imposed upon by any one. So the plaintiffs contention that the deceased was not in his senses is merely advanced to find a loophole where other contentions of theirs may fail, [? and] is purely brought out of imagination, as they all admit that they were not present and were not aware of the will. So, however, they were aware of Shib Singhs having been too ill to make a will. The evidence of the sub-registrar, who was called to attest the will, but returned without doing so, as the will was not drawn up when he arrived and did not wait for it being written, and was met with on his way back by Pandit Jagan Nath, pleader, who had been sent for by the deceased for advice, needs no comments though plaintiffs pleaders have tried to make much of it. " The officer who examined him has left no note as to what he thought of his evidence, but I see no reason to say anything about it, except that he may be right when he said that Shib Singh was too weak to make a will, and so he came back, as a man on a sick bed may have had lapses, and as the disease was of old standing, and his opinion that he was not fit to make a will is of no value, as the medical officer of high standing stated that Shib Singh was in his senses and was fit to make a will, as the people about Shib Singh did not want to incur further expense of calling the sub-registrar again, and got legal advice that registration of a will was not necessary. Their not calling the sub-registrar after the will was drawn up does not shew that Shib Singh was not in his senses when it was signed by him on the 11th June, 1898, and attested by respectable witnesses on the 12th June, 1898. So I find this point in favour of the defendants and against the plaintiffs, that the will was executed by Shib Singh, deceased, in his senses, when he could understand its contents. I need not go into further details as to the evidence on the point. I have no reason to doubt the statement of men like Rev. Mr. Chatterji, because he had a little business with the defendants for a mutation [sic] for some little land for the Missionary Society, to which he belonged, or Dr. D. N. P. Datta because he medically attended Shib Singh for a day or so, and Pandit Jagan Nath, pleader, or Mehta Duni Chand, civil surgeon, since dead. " The second and third points as to undue influence also may be disposed of from the same evidence, though I do not see how the reversioners can raise that plea when they deny the knowledge of the existence of the will." The Chief Court found that the execution of the will was not the voluntary act of the deceased. It said " It may at once be conceded that the will was actually executed by Shib Singh, and we see no reason to doubt the evidence of the Rev. Mr. Chatterji and Dr. It said " It may at once be conceded that the will was actually executed by Shib Singh, and we see no reason to doubt the evidence of the Rev. Mr. Chatterji and Dr. Datta that on the day when the testator signed the will he was in his senses, or in other words, that he was not unconscious or wandering in his mind. This much may be admitted. But it by no means follows from this that the will was voluntarily executed. On the contrary, from the evidence on the record we are satisfied that at the time when the will was made the testator was in a condition which rendered him powerless to withstand the influence of Bur Singh and Jawala Singh. He was practically at deaths door, and he had been removed to the house of a Muhammadan, one Talamand. The evidence shews that he was at this time in an utterly helpless condition, and it is not denied that Talamand, in whose house he spent his last days on earth, refused to sign the will as a witness. All this time Bur Singh and Jawala Singh were in close attendance upon him, and it is not strange, therefore, that they eventually succeeded in getting him to agree to anything they suggested. The unfortunate man was probably ready to agree to anything, provided he was left in peace, and he therefore was prevailed upon to sign a will leaving the whole of his property to whomsoever it might please these two persons to assign it. But even under these circumstances he does seem to have objected to the proposal to leave his wife, Mussammat Charan Kaur, practically penniless. But with this last effort to do something for his wife, his will gave way, and as regards all other matters he was not in a position to gainsay Bur Singh and Jawala Singh. There was no reason whatever why he should select Bur Singh as the one of his reversioners who was entitled to special consideration. It is no doubt alleged that Bur Singh and his grandfather, Ram Singh, rendered services to the deceased, but of these alleged services there is no real proof. The oral evidence on the point is of the vaguest possible kind, and therefore of no value. It is no doubt alleged that Bur Singh and his grandfather, Ram Singh, rendered services to the deceased, but of these alleged services there is no real proof. The oral evidence on the point is of the vaguest possible kind, and therefore of no value. Nor is it very clear how a young man such as Shib Singh would be in need of such services. On the other hand there is ample documentary evidence to shew that until he was helpless and on his dying bed, Shib Singh was by no means friendly disposed towards Bur Singh. In 1894 there was such enmity between Shib Singh and Bur Singh that they were both called upon to give security to keep the peace. In 1896 Bur Singh was the principal plaintff in the suit brought by the reversioners to have one of his alienations declared null and void, and on the 4th March of that year Bur Singh, when cross-examined on behalf of Shib Singh, had to admit that on the death of Mussammat Jas Kaur, Shib Singhs sister-in-law, for whom Bur Singh acted as agent, Shib Singh had his house searched with a view to finding sundry articles which Shib Singh alleged had been stolen by Bur Singh. He also admitted that he had brought a criminal case against Shib Singhs servants. Admittedly, therefore, up to 1896 the deceased and Bur Singh were on the very worst possible terms, and there is no evidence whatever to shew that his hostility suddenly came to an end and that the two became so entirely reconciled that Shib Singh, of his own free accord, elected to leave his property partly to his alleged adopted son, Harbans Singh, and partly to Bur Singh and Bur Singhs brother, Tara Singh. Assuming for the sake of argument that Bur Singhs grandfather, Bam Singh, looked after Shib Singh when the latter was a mere youth at school, we still fail to find any reason why Shib Singh, had he been a free agent, should have gone out of his way on his deathbed, to specially favour that one of his collaterals with whom he had during his lifetime been at bitter enmity. The witnesses who say that Bur Singh rendered services to Shib Singh give no details as to time and place, and obviously it was necessary to shew that after 1896 (when the two were on the most hostile of terms) a reconciliation took place, and that Bur Singhs conduct towards the deceased so entirely changed that he who had been an enemy became a violent partisan of the deceased, and remained so up to the date of the latters death. Of course, once Shib Singh became utterly helpless, and incapable of exercising his own free will, it is quite possible—indeed, it is proved—that Bur Singh and his friend, Jawala Singh, took entire charge of him for purposes of their own. This, however, is a very different thing from saying that Bur Singh was the one collateral whom Shib Singh was anxious, when in possession of his full faculties, of benefiting after his death. In our opinion Shib Singh, at the time when he executed the will (a few days before his death), was in an utterly helpless condition and completely at the mercy of Bur Singh and Jawala Singh. He was a mere tool in their hands, and the so-called will was the will, not of the person who signed it as testator, but of the two persons who took advantage of his helplessness to force or induce (it matters not which) him to execute it for their benefit." Sir II. Erle Richards, K.C., and Gurcharu Singh, for the appellants, contended that the evidence did not establish a case of undue influence by them on the mind of the testator, or that the will was not voluntarily executed by Shib Singh while he was of sound and disposing mind. To establish undue influence there must be evidence of either fraud or coercion, and it was entirely wanting. Reference was made to Wingrove v. Winprore (( 1885) 11 P. D. 81.); Boyse v. Ross borough (( 1857) 6 H. L. C. 1, 49.), Baudains v. Richardson. ([ 1906] A. C. 169.) De Gruyther, K.C., and Dube, for the respondents, contended to the contrary and referred to Fulton v. Andrew (( 1875) L. R. 7 H. L. 448.), Barry v. Butlin (( 1838) 2 Moo. P. C. 480.), and liar wood v. Baker. (( 1840) 3 Moo. P. C. 283, 290.) Counsel for the appellants were not heard in reply. P. C. 480.), and liar wood v. Baker. (( 1840) 3 Moo. P. C. 283, 290.) Counsel for the appellants were not heard in reply. The judgment of their Lordships was delivered by Lord Robson. The main question in this appeal is as to the validity of the will of one Shib Singh, who was a Hindu Jat, residing at Garhdiwala in the district of Hoshiarpur in the Punjab. There is a further point as to whether a portion of the land comprised in the will is ancestral property or not. That question is substantially one of fact. Both the Courts below are agreed in finding that the property in dispute was acquired, and no reason has been shewn to their Lordships which would justify them in coming to a different conclusion. Shib Singh fell seriously ill in May, 1898. The will in dispute was made by him on June 11, 1898, and he died on the 23rd of the same month. It is alleged by the respondents in their plaint that the will was executed when " he was seriously ill, weak— really at deaths door—and not in possession of his right senses and intellectual powers, and was under the undue influence of Jawala Singh, father of the defendant Harbans Singh, and Bur Singh." None of the judges had the advantage of seeing the witnesses, as the evidence was taken wholly on deposition before the trial. There was very little conflict of evidence on the particular facts alleged, so far as those facts were material to the making of the will or the condition of the testator, and the only question for the Courts was whether, on such facts, the charges of testamentary incapacity and undue influence had been established. Shib Singh was brought from Garhdiwala to Hoshiarpur for medical treatment on the advice of Mr. Chatterji, a mission teacher with whom he was acquainted, and was placed under the care of two doctors. He was accompanied by his relative the defendant Bur Singh and his brother-in-law Jawala Singh. His physical condition became, no doubt, rapidly worse, and he, or some one about him, sent for his lawyer, Pandit Jagan Nath, in order to take instructions for his will. This gentleman gave evidence for the appellants. He was an old friend and schoolfellow of the testator, and had been his counsel in practically all his litigation. His physical condition became, no doubt, rapidly worse, and he, or some one about him, sent for his lawyer, Pandit Jagan Nath, in order to take instructions for his will. This gentleman gave evidence for the appellants. He was an old friend and schoolfellow of the testator, and had been his counsel in practically all his litigation. He took his instructions from Shib Singh himself, and visited him for that purpose on several occasions before the day on which the will was executed. It cannot be said that, so far as the relationship of the beneficiaries to the testator is concerned, there was anything unnatural or unusual in the will. An allowance for maintenance was made to the wife; certain property was left to the defendants Bur Singh and Tara Sirigh, who were relatives, and whose grandfather is stated to have had care of Shib Singh when the latter was a boy and to have rendered him important services. The remainder of the property went to his nephew, Harbans Singh, who had been born in Shib Singhs house and brought up by him, he himself being childless. The will was dictated by the Pandit Jagan Nath (in the presence of Shib Singh) to a petition writer, Mahdo Ram , who knew Shib Singh. Dr. Datta and several zamindars were also present. "While the dictation was going on Shib Singh made various observations on the clauses, and some alterations were made at his suggestion in the draft ; for instance, he increased the provision for his wife. Dr. Datta afterwards read the completed document over to him and satisfied himself by questions that he understood it, and it was duly signed. Jagan Nath had previously sent for the registrar to have the will registered, but the sub-registrar had come and gone before the will was signed, and in the course of conversation on this subject Shib Singh said he was under the treatment of doctors and he would have it signed by them. On the following day, therefore, both doctors signed it, and, according to the custom of their profession in India in such cases, they added a statement of their opinion that the testator, though ill, was in his senses. Dr. Datta gave evidence at the trial in favour of the will, but Dr. Duni Chand had in the meantime died. On the following day, therefore, both doctors signed it, and, according to the custom of their profession in India in such cases, they added a statement of their opinion that the testator, though ill, was in his senses. Dr. Datta gave evidence at the trial in favour of the will, but Dr. Duni Chand had in the meantime died. It would be difficult to have a stronger prima facie case in favour of the will, and it was fully accepted by the District Judge. The Chief Court also say that they " see no reason to doubt the evidence of the Rev. Mr. Chatterji and Dr. Datta that on the day when the testator signed the will he was in his senses, or, in other words, that he was not unconscious or wandering in his mind," but they are of opinion that he was " in a condition which rendered him powerless to withstand the influence of [the defendants] Bur Singh and Jawala Singh," who were in close attendance upon him, and in whose hands the Chief Court think that " he was merely a tool." They add that, in their opinion, those defendants " took advantage of the testators helplessness to force or induce him to execute it for their benefit." Their Lordships are unable to find any evidence on the record which would justify this conclusion. The testator had been a man of intemperate habits, and was within twelve days of his death when the will was made; but there is no evidence to indicate that he was not sober, or not of a sound disposing mind, when he was transacting the business of his will on June 11. Nor is there any evidence whatever that the defendants Bur Singh and Jawala Singh used the undue influence which is alleged, beyond the bare fact that they were the relatives who accompanied Shib Singh to Hoshiarpur and were selected by him for benefits under the will. It is stated that up to 1896 Bur Singh and Shib Singh were at enmity, and that there were open quarrels and litigation between them. That does not appear, however, to have prevented the testator from afterwards employing Bur Singh in the management of his lands, or from sharing his table with him. It is stated that up to 1896 Bur Singh and Shib Singh were at enmity, and that there were open quarrels and litigation between them. That does not appear, however, to have prevented the testator from afterwards employing Bur Singh in the management of his lands, or from sharing his table with him. The District Judge finds that Bur Singhs services to the testator are proved both from documents and from the oral evidence of very respectable witnesses. These old family quarrels do not therefore, of themselves, shew that Bur Singh could not have been a person whom the testator desired to benefit. It was alleged on the part of the defendants that Harbans Singh had been duly adopted by Shib Singh as his son, and the District Judge found this adoption proved. The Chief Court differed from him on this point, and drew some inferences unfavourable to the defendants case generally from the fact that the allegation had been put forward. It is unnecessary for their Lordships to decide the question of adoption, but they are of opinion that the evidence given in relation to that question gives rise to no material reflection on the evidence of the independent witnesses in support of the will. The Chief Court treat the evidence of Jagau Nath as not quite " beyond criticism," because, in their opinion, he acted in the matter of the will as though he were ignorant of facts disclosed in previous proceedings relating to the position of Harbans Singh and Bur Singh, which it was thought probable he would remember, but they do not go so far as to reject or discredit his testimony. Indeed, Jagan Nath was not cross-examined on these points, and there is really nothing in them which is not susceptible of explanation without reflecting in any way on his independence and good faith as a witness. With regard to the Rev. Mr. Chatterji it was suggested apparently as a circumstance of suspicion against him that he had at one time bought a piece of land for his mission from Shib Singh; but there is nothing to shew that the transaction was not a normal and perfectly proper matter of business. No suggestion is made against the good faith of the doctors or of Mahdo Ram. No suggestion is made against the good faith of the doctors or of Mahdo Ram. The onus of proving the testamentary capacity of Shib Singh of course lies on those by whom the will is propounded, and in their Lordships opinion they have discharged that obligation by the evidence indicated above. Such evidence is not displaced by mere proof of serious illness and of general intemperance, and yet that is as far as the evidence of the respondents can fairly be said to go. So far as the charge of undue influence is concerned, all that is shewn on the part of those attacking the will is that there was motive and opportunity for the exercise of such influence by the defendants, and that some of them in fact benefited by the will to the exclusion of other relatives of equal or nearer degree. Circumstances of that character may sometimes suggest suspicion, and would certainly lead the Court in the present case to scrutinize with special care the evidence of those who propound the will; but in order to set it aside there must be clear evidence that the undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. Such evidence is not only lacking in this case, but, in the opinion of their Lordships, the circumstances attending the making and execution of the will are not reasonably consistent with it. Their Lordships will therefore humbly advise His Majesty that this appeal should be allowed with costs, and the judgment of the Chief Court set aside and that of the District Court restored with costs in both Courts.