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The Appellate Court agreeing with the Trial Judge held that the first respondent was merely present at the time of the execution of the will and did not have anything to do with its execution. The case of the first appellant was that as a condition of the marriage arrangement, the will was executed and because of that Bhim Sain made no provision for the maintenance of his aged mother or for the maintenance and marriage of his youngest daughter Rita who was then studying. Instead he gave away the entire property to the first respondent which is a suspicious circumstance and raises an inference of undue influence. This submission was clearly negatived, and on the (1) A.I.R. 1924 P.C. 28. (3) (1973) 2 S.C.R. 541.

In this case, however, there is little or no difficulty in finding out the probable reason why Bhim Sain while making the will did not provide for his mother and his youngest daughter. These reasons are elaborately set out in the judgment of the Appellate Court. No doubt the learned Judge who delivered the judgment of the Bench did say that the exclusion of the mother as well as his children particularly Rita the minor daughter and Shanta showed the disposition to be unnatural, improbable and unfair and would give rise to suspicious circumstances. in order to understand what the testator intended and why he intended so, one has to get into his arm-chair to ascertain his frame of mind and the circumstances in which he made the will. As we have stated, Bhim Sain lost his first wife on April 13, 1959. On August 16, 1960 just over a year after her death, Bhim Sain went to the police station and made a complaint against his son (Surendra Pal). This complaint as recorded in the general diary showed that Surendra Pal had been "continuously insulting, abusing and threatening to subject him to violence and incapacitate him and deform him". According to Bhim Sein his son was doing all these because he had been found out in the act of removing jewelleries and cash from the vaults, safe and steel almirah. On August 25, 1960 nine days after his first complaint, Bhim Sain went to the Court of the Chief Presidency Magistrate and made a formal complaint against the appellant unders.350of the Indian Penal Code. The complaint which he lodged before the Court shows that he had tried to bring up his son properly by giving him a sound education and also by initiating him into his own line of business. The son, however, picked up "high ways of living and luxurious habits" and used to waste money recklessly. in order to bring him back to the normal path of life he thought of placing him in a responsible position so that he might be cured and with this end in view Bhim Sain made over his business ventures under the name and style of Card Board Paper Products Company to his son. After the death of his wife in April 1959 he thought that be would get his son married to a respectable family and hoped that such a marriage would induce him to settle down. Accordingly he got him married to a girl from a highly respectable family. But in spite of showering all his affection, his son (the first appellant) was insulting him and making demands upon him for moneys and putting him in fear of life. He then set out the details as to how the first appellant had removed jewelleries valued at about Rs. 25,774/- as also some cash from the locker of a Godrej Steel Almirah which used to be kept in the room of the first appellant, and how, when Bhim Sain discovered this loss and asked him about this theft, the first appellant flew into a rage, used provoking language and tried to assault him. Thereafter the first appellant was regularly threatening him and he had even removed his double-barrel gun and cartridges from his Almirah and kept it with him causing him constant fear. It will be observed that these complaints against the son, whatever may be the justification, were made long prior to the advertisement in the matrimonial column of the Sunday Tribune, Ambala. At this time Shanta the third daughter was admittedly living not with her father but with her brother the first appellant and so was Rita the youngest daughter. Though some attempt was made to show that Rita and Bhim Sain were on good terms, the evidence as pointed out by both the Courts belies the assertion. Rita, though 13 years old came back from the school even before the second marriage of her father. However, she did not stay with her father but lived with her brother. An attempt was made to show that the father used to go and see her when she went back to school and thereafter used to meet her at the Victoria Memorial. All this has been negatived. In our view, one thing stands out clearly and that is the relations between the father on the one hand and the first appellant and the two daughters on the other were strained and bitter. If at all, there was positive hostility between them. The son and the daughters never came to see Bhim Sain even when he was dying. The appellant did not take his son to see his grandfather even though the first appellant admitted that his father was anxious to see his grandson. The evidence of Amalendu that Bhim Sain had gone to see Rita in Simla has been disbelieved. The Trial Judge called Amalendu a coward and a liar. The Appellate Court considered his evidence to be unsatisfactory and rejected it. The conclusion to which both the Courts have arrived at is that Bhim Saint entered into an agreement with the first appellant in October 1960 long before the meeting between the first respondent and the deceased in answer to the advertisement had taken place. in that agreement Bhim Sain made provision for the maintenance and marriage of Shanta who was to reside with the first appellant. He had also provided for the maintenance and residence of Rita though in that agreement no mention was made about her marriage. The learned Advocate for the first appellant made much of this omission as also the omission to provide for the maintenance of his mother who was living with him. But as the learned Judges of the Division Bench of the Calcutta High Court pointed out, Bhim Sain was only 55 years of age when he married and made the will. He perhaps did not expect to die so soon, nor did lie think that he would not be able to perform the marriage of Rita, nor provide for the maintenance of his mother during her lifetime. Perhaps he did not entertain any doubt that the first respondent in whose favour he had willed the properties would not discharge the obligations which he would have to discharge when he was alive. At the time of the marriage, with a positively hostile family such as he had, the thing that would be uppermost in Bhim Sain's mind is what would happen to his wife if she was left unprovided for. Bhim Sain's family would consider Saraswati a stranger to the family and she would be regarded as an interloper even after her :marriage and if anything were to happen to him she would be left to the mercy of his inimical children. It is but natural for Bhim Sain in these circumstances to provide for his newly wed wife even without that wife asking or importuning her husband to do so. Apart from this thinking one important circumstance is however ignored, and that is, Saraswati was not a gold-digger as the expression goes. She was an educated lady, came from a good family, had been a medical practitioner for about 13 years, had her own status in life and was as lonely and longing for a male companion as Bhim Sain was for a woman companion. In the letter written by Puri to Bhim Sain's Personal Assistant giving particulars of Saraswati's education and family, she has described herself as follows :