JUDGMENT : CHATURVEDI, J. 1. This is an appeal under S. 299 of the Indian Succession Act against an order passed in Letters of Administration Case No. 17 of 1953 by the District Judge, Indore, on 5-10-1953 dismissing the application for granting Letters of Administration with the will annexed to the appellants. 2. The deceased Peregrine Joseph DeSouza made a will on 21-2-1951 at Mhow bequeathing all his movable property worth nearly Rs. 7,000 to his brother and his brother's wife who are appellants Nos. 1 and 2 in this appeal. He was at that time sixty years of age and was residing with the appellants in Bungalow No. 109 at Mhow Cantonment. The will is a registered document. The testator then died on 15-1-1953 in Mhow in the house of the appellants. The deceased left behind him, besides the appellants, two more brothers and two sisters who are respondents in this appeal. The application for Letters of Administration was opposed only by one brother i.e. respondent No. 2, A.J. DeSouza mainly on the ground that the will was suspicious and seemed to be the outcome of undue influence exercised on the testator by the appellants. It was mentioned that the deceased had a heart complaint and did not usually reside at Mhow, that it was only a temporary residence of his at Mhow, and the appellants taking advantage of his ill health manipulated the will which is suspicious Inasmuch as the other relations had not been informed of it. 3. The said will was signed by two attesting witnesses (i) Rustomji D. Patel, who was at that time Guard, B.B. and C.I. Railway at Mhow, and (h) Mr. R. Schoope, Roman Catholic Church Chaplin, at Mhow. The first witness could not be produced as he had been transferred to Ahmedabad. The Chaplain was produced who clearly deposed that the deceased Signed the will Ex. P/1 in his presence and the other witness also signed it in his presence, and that the deceased at the time of execution appeared to be in a sound mental state. The witness knew the deceased for about a year before the will was made. The deceased would not come to the church at all but he called to his home the witness (i.e. the chaplin) for making prayers once a month. The witness knew the deceased for about a year before the will was made. The deceased would not come to the church at all but he called to his home the witness (i.e. the chaplin) for making prayers once a month. The deceased suffered from high blood pressure and nervousness and so he walked in the compound of his house but would not go outside. The chaplain was specially called as a witness to this will at the time of execution. As regards the mental ability of the deceased, the witness stated : "My estimate of his mental ability is that he was fairly intelligent and able to look after his affairs." The evidence of the chaplain has not been adversely commented upon by the learned District Judge nor has he disbelieved it. It has been cursorily referred to in the judgment and the only portion of this testimony which the learned District Judge thought proper to refer to is that the deceased suffered from high blood pressure and nervousness. And, then, from other evidence in the case, the District Judge concluded that the conscience of the Court that the instrument so propounded is the will of a free capable testator is not satisfied, and, on this ground alone, he has dismissed the application for Letters of Administration. 4. The main thing that seems to have weighed with the learned District Judge is that the appellants had not informed other brothers and sisters about the death of the deceased. Appellant No. 2, who is the wife of appellant No. 1, clearly deposed that she had informed all the relations of the deceased of his death by telegrams. But she could not produce receipts, of the telegrams. On this point, therefore, the learned District Judge did not believe her. In our opinion, unless there is some evidence which contradicted it, the testimony ought to have been believed on this point. Respondent No. 2 did not dare come to the witness-box to depose that he did not receive any telegram of her brother's death. 5. As regards her own husband's financial affairs appellant No. 2 stated that appellant No. 1 was a Telegraphist upto 1938 and now gets a pension of Rs. Respondent No. 2 did not dare come to the witness-box to depose that he did not receive any telegram of her brother's death. 5. As regards her own husband's financial affairs appellant No. 2 stated that appellant No. 1 was a Telegraphist upto 1938 and now gets a pension of Rs. 93/- per month; that he retired due to ill-health and after retirement got employment as Anti-Malaria Officer at Mhow, but he lost his eyesight in 1949 when the testator came to them. They did not solicit the testator for a bequest on this account, but as the appellant No. 1 had lost his eye-sight, the testator felt sorry for him on that account and so he bequeathed his property to them. This is what the deceased said when he made the will. 6. This appears to be a clear and candid statement. The appellant, who was asked why she did not inform the other brothers and sisters of the execution of the will, replied- "We did not inform the next kin of the execution of the will, because the testator did not want them to be informed." She further deposed that the deceased was perfectly sane when he signed the will and he made his will out of his own free will. His wife had died in 1940 and he had no children. He had his wife's people at Bombay and stayed there for a few months but the climate did not agree with him there. So he came to Mhow. He liked the climate and stayed there with his brother permanently. 7. Then, there is the evidence of the Vakil, Shri Vishwanath Ramchandra Dhodapkar who is a practising lawyer at Mhow. He had prepared the draft of the will. He deposed that the appellant No. 1 along with a boy had come to him with a paper written by somebody and had informed him that his brother wanted to make a will. On that basis he drafted the will and then got it typed out. Before typing out Mr. Dhodapkar had personally seen the testator, ascertained his wishes, and the testator clearly told him that he would bequeath all his property to his brother and his brother's wife. After this approval, he got the will typed out. Mr. On that basis he drafted the will and then got it typed out. Before typing out Mr. Dhodapkar had personally seen the testator, ascertained his wishes, and the testator clearly told him that he would bequeath all his property to his brother and his brother's wife. After this approval, he got the will typed out. Mr. Dhodapkar deposed that he advised registration of the will and the deceased asked the witness to be present at the time of execution. The witness reached late and was informed by the testator that he had executed the will. Mr. Dhodapkar then was also present at the time of registration of the will and states that at all the material time the testator was in a fit mental state. 8. In our opinion, this testimony ought to have been regarded sufficient for granting Letters of Administration. Here the testator had subsequently met personally the Vakil, and he himself had given instructions and the will was drawn in accordance with those instructions. It was certainly not a case of a testator giving instructions to a lay intermediary who repeated them to a lawyer where opportunities for errors in transmission may occur. According to Mr. Dhodapkar as well as according to the Chaplain, the .testator was mentally sound at the time of execution of the will. and. we can take it that though weak, the testator was in such a state of health as to be capable of exercising his own judgment and volition. In such matters, illustration (iii) to S. 59 of the Indian Succession Act lays down the correct rule. It says : "Section 59(iii)- A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. In such matters, illustration (iii) to S. 59 of the Indian Succession Act lays down the correct rule. It says : "Section 59(iii)- A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid will." Then, in 'Parker v. Felgate,' (1883) 8 PD 171 (A) Sir James Hannen observed : "If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus : I gave my solicitor instructions to prepare a will making it a certain disposition of my property; I have no doubt that he has given effect to my instructions, and I accept the document which is put before me as carrying it out." In 'Perera v. Perera', 1901 AC 354 (B) the Privy Council observed that the above-mentioned ruling of Sir James Hannen is "good law and good sense". In our opinion, this ruling as well as the rule in illustration (iii) to S. 59, Indian Succession Act fully apply to the facts of the present case and Ex. P/1 must be taken to be a valid will. It is natural for a testator to bequeath all his property to the brother with whom he had been residing rather than to those with whom there is no evidence of any association. So in this case, it cannot be said that the testator was so enfeebled by disease that he had lost memory of his other brothers and sisters. 9. In the present case, in our opinion, it had been proved that the will had been executed with due solemnities by a person of competent understanding and apparently a free agent. So in this case, it cannot be said that the testator was so enfeebled by disease that he had lost memory of his other brothers and sisters. 9. In the present case, in our opinion, it had been proved that the will had been executed with due solemnities by a person of competent understanding and apparently a free agent. The learned District Judge, however, thought that the will was prepared by appellant No. 1, who, along with his wife, got the whole property of the testator, and, there were circumstances which excited the suspicion of the Court; and applying the principles laid down in 'Mallappa v. Tipava', AIR 1930 Bom 539 (C), 'Surendra Nath v. Jnanendra Nath', AIR 1932 Cal 574 (D) and 'Vellaswamy v. Sivaraman', AIR 1930 PC 24 (E), he thinks that the onus that rested on the propounder of the will has not been properly discharged. In our opinion, all the three cases can be distinguished on facts. In 'AIR 1930 Bom 539' (C) the will was full of statements which were found to be misstatements of facts. The will was in favour of the testator's mother's sister's husband and the testator's widow was excluded from it. It was found that the maternal uncle was exercising a great deal of influence on the testator and he had taken big loans from the beneficiary in whose favour the will had been written. On these facts, the will was not believed to be a valid will. In 'AIR 1932 Cal 574' (D), the testatrix had died soon after making the will. It was not signed by her, but on it was found her thumb impression, though she had signed other documents at all material times. She was very old, had been suffering from diabetes and a gangrene had set in. The doctor who had been attending her had deposed in favour of the objector; and, therefore the will was discarded. In ' AIR 1930 PC 24 ' (E), the signatures of the testator looked like mere scrawls as if they were made by the person unable to hold a pen properly. The doctor who had been attending her had deposed in favour of the objector; and, therefore the will was discarded. In ' AIR 1930 PC 24 ' (E), the signatures of the testator looked like mere scrawls as if they were made by the person unable to hold a pen properly. The evidence produced did not show that the testator had approved of the will and the respondent had taken a leading part in giving instructions for the execution of the will, for procuring its execution, and, its registration, and therefore the particular will was not believed to be a valid will. All those highly suspicious circumstances that were present in the three cases mentioned above are not found in the present case and the learned District Judge, in our opinion, was not right in applying the principle enunciated in the above cases to the facts of the present case. 10. It is no doubt true that there is a rule that where a will is prepared by a party who takes a benefit under it, that is a circumstance which, forms a just ground of suspicion and requires clear, and satisfactory proof that the instrument contains the real intention of the testator. The principle for this rule is that when the person who can prove a fact has a strong motive for asserting it, his evidence must be received with greater caution than that of a disinterested witness, and, therefore, every circumstance of legitimate suspicion which is found to exist must make any reason-f able man less ready to accept his uncorroborated) testimony. Explaining this rule in 'Harmes v. Hinkson', AIR 1946 PC 156 (F) their Lordships of the Privy Council observed that this rule warns the Judge that in such circumstances, the evidence of the witness who drew the will must be received with caution; but this does not mean that it must be rejected altogether. The burden of proof may be discharged. The adverse presumption may be rebutted. Such rules in fact only enjoin a reasonable scepticism, not an obdurate persistence in disbelief. These rules do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. In short, a Judge is never required to close his mind to truth. 11. In the present case there is no evidence that the will was prepared by the appellants. These rules do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. In short, a Judge is never required to close his mind to truth. 11. In the present case there is no evidence that the will was prepared by the appellants. Whatever adverse inference may be drawn by the circumstance that appellant No. 1 had taken a paper to Mr. Dhodapkar, in our opinion, the suspicion attached to the circumstance was dispelled when Mr. Dhodapkar deposed that lie had taken personal instructions from the testator himself before the will was typed out. From the evidence of the Vakil as well as of the Chaplain the initial suspicions had been removed and it had been proved affirmatively that the testator knew and had approved of the contents of the will Ex. P/1. In our opinion, the appellants had discharged the onus by proof of capacity and the fact of execution of the will. Now, there is no question of undue influence in this case. Where once it has been proved that a will has been executed by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges it. The Privy Council laid it down in 'Mt. Gomtibai v. Kanchhedilal', AIR 1949 PC 272 (G) that undue influence in order to invalidate a will, must amount to coercion or fraud. Its existence must be established as a fact and it must also appear that it was actually exercised on the testator. The burden of proving undue influence is not discharged by mere establishing that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained. In the present case no evidence has been adduced and the burden proving undue influence was definitely on the respondents who were unable to discharge it. The learned District Judge has confused 'suspicious circumstances' with 'undue influence'. In the present case no evidence has been adduced and the burden proving undue influence was definitely on the respondents who were unable to discharge it. The learned District Judge has confused 'suspicious circumstances' with 'undue influence'. In 'William Low v. James Guthrie', 1909 AC 278 (H), the House of Lords made it quite clear that the rule that where a will is prepared by a party who takes a benefit under it, that is a circumstance which forms a just ground of suspicion and requires clear and satisfactory proof that the instrument contains the real intention of the testator, does not authorise the Court to consider suggestions of fraud, or undue influence of which no foundation is laid in evidence. In fact, in the present case there was no evidence about any undue influence. The appellants might have, at the most, urged upon the testator to consider the desirability of making a will and it is always legitimate to urge upon a man whose condition is precarious the desirability of making a will, ' AIR 1945 PC 156 ' (F). The loss of eyesight of appellant No. 1 might have influenced the testator in making the will in favour of the two appellants. But it is to be borne in mind that all influences are not unlawful. Illustration VII to S. 61 of the Indian Succession Act usefully lays down the rule on the point and is reproduced below : "Illustration (vii) to S. 61 : A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent- intercession and persuasion with him to induce him to make a will of certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B." At what time an entreaty or appeal to the affection becomes 'undue influence' has been brought out in a forcible and remarkable language in the following observations of Sir J.P. Wilde in 'Hall v. Hall', (1868). 1 P and D 481 (I) : "Persuasion, appeals to the affections or ties of kindred, 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. Importunity or threats such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led out, not driven, and his will must be the offspring of his own volition, and not the record of someone else's." The principle in these observations had been followed by the High Courts in India; See for example 'Charu Chandra v. Khitish Chandra', AIR 1948 Cal 351 (J) and lays down the correct law on the point. 12. The evidence in the present case falls short of the requirements for constituting undue influence noticed in the above-mentioned observations. The evidence of Shri Dhodapkar and the Chaplain positively establishes that the will of the testator in the present case was the offspring of his own volition and was not dictated by the appellants in any way. 13. On consideration of this evidence, we have come to the conclusion that the testator had executed the will in his right mind and with disposing mental capacity. 14. Mr. Gokhale, learned Counsel for the respondents, in the last, contended" that there is no-evidence that the will Ex. P/1 was read out to the testator before he signed it. And there is no doubt that it is true. Mr. Rudolph Schoepe stated that the deceased signed the will in his presence. But the testator did not disclose the provisions of the will to the witness and, therefore, the witness could not state whether the testator had realised, how the will was going to affect the interest of his heirs at law. Mr. Rudolph Schoepe stated that the deceased signed the will in his presence. But the testator did not disclose the provisions of the will to the witness and, therefore, the witness could not state whether the testator had realised, how the will was going to affect the interest of his heirs at law. It was further stated that the testator knew English and always spoke that language with the witness. According to the witness, when he reached the place, the will was ready typed and was lying on the table where the testator was sitting. But in his presence it was not read over to him. Mr. Dhodapkar had reached late. But he says that previously he had taken the typed draft and had asked the testator. "Do you approve of the will ?" and the testator had replied- "Yes. I have gone through it." The witness further stated that he had asked a special question "Whether you want to bequeath all the property to your brother and brother's wife alone ?" And, in reply the testator said, "Yes". Prom this evidence the whole of the probabilities appear to point to the testator having read the will before he signed it. It is almost impossible to suppose that having given the instructions to a lawyer to draw up the will and having had the will drawn up and having the draft by him, he would not have read the document in which he was interested at that time. From these probabilities, I have come to the conclusion that the testator had read the will and that he read it sufficiently for all purposes. The testator had personally acknowledged his signatures and saw that the Chaplain the other witness, and Mr. Dhodapkar also put their signatures; and from this the inference is very strong that the testator was wholly alive to the importance of his will being attested, and before putting his signatures he must have gone through the contents of the will. In such cases, in our opinion, a direct affirmative proof of the will having read over to the testator is not absolutely necessary. 15. Under these circumstances, the judgment of the learned District Judge cannot be allowed to stand. The appeal is allowed with costs and Letters of Administration with a copy of the will annexed will be granted. We order accordingly. 16. NEWASKAR, J. :- I agree. 15. Under these circumstances, the judgment of the learned District Judge cannot be allowed to stand. The appeal is allowed with costs and Letters of Administration with a copy of the will annexed will be granted. We order accordingly. 16. NEWASKAR, J. :- I agree. Appeal allowed.