Mere fact that the profounder of a will was in a position to influence the deceased is not sufficient
As laid down the Privy Council in Bur Singh's case as well as n Gomtibai's case cited above (AIR 1949 PC 272), the mere fact that the profounder of a will was in a position to influence the deceased is not sufficient but the caveat must lead evidence that such influence was in fact exercised by the deceased. There is no evidence worth the name led by the first defendant as far as the actual exercise of undue influence by the plaintiff on the deceased is concerned. In that view of the matter, it would be unnecessary for me to discuss the evidence led on behalf of the plaintiff which clear speaks to the contrary. Suffice it to say, that the evidence in regard to the circumstances leading to the execution and attestation of the will clearly shows that the deceased had undoubtedly prepared for the execution of the will and had actually arranged for its execution and attestation as a matter of his own free will and there is therefore no question of any undue influence having been exercised on him by the plaintiff or any other person in that behalf. I have therefore, no hesitation in coming to the conclusion that the first defendant has hopelessly failed to discharge the onus which rests upon her of proving that the will was procured by the plaintiff by undue influence and in holding that the evidence led by the plaintiff actually negatives the plea of undue influence set up by the first defendant. In my opinion the conclusion of the learned trial judge on this point is clearly erroneous and seems to have been the result of putting the onus on the plaintiff contrary to the clear legal position laid down by the authorities already discussed above. The not sufficient 4th issues framed by him was correct as far as the question of onus was concerned. In actually dealing with the same he however appears to have lost sight of the question for onus was concerned. In actually dealing
