1 TS.78.94-TP.156.94.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO. 78 OF 1994 IN TESTAMENTARY PETITION NO.156 OF 1994 Lady Jena Jamshedji Duggan ...Deceased Dr. Feroze Homi Duggan ...Plaintiff Vs. Jean Duggan ...Defendant Mr. Shailesh Shah a/w. Mr. P.N. Ganwani a/w. Mr. J.S. Solomon a/w. Mr. A.B. Nagvekar a/w. Ms. Soniya Putta i/b. M/s. Solomon & Co., for the Plaintiff Mr. Vibhav Krishna a/w. Mr. Nilesh Masurkar a/w. Ms. Laxmi Mordekar i/b. M/s. Juris Consillis for Defendant CORAM : SMT. ROSHAN DALVI, J. Date of Reserving for Judgment : 21st June 2011 Date of Pronouncing the Judgment: 3rd August 2011 J U D G M E N T : 1. The Plaintiff is a grandson of the deceased, Lady Jena Jamshedji Duggan. He has applied for Letters of Administration (L.A) with the Will of the deceased annexed thereto dated 4 th April 1993 as the Executors mentioned under the Will have renounced their Executorship. The Defendant is the wife of the predeceased son of the deceased. The constituted attorney of the Plaintiff who is his mother initially applied for L.A. She has since expired. The Plaintiff himself has sued thereafter. Initially the Defendant was not shown as the heir of the deceased. L.A were granted. L.A have been revoked upon the 2 TS.78.94-TP.156.94.sxw Petition of the Defendant in that behalf. Thereafter the Defendant has filed her Caveat. 2. It is the case of the Defendant in her affidavit in support of the Caveat that the Will has not been validly executed and that there are strong suspicious circumstances casting doubt upon the genuineness of the Will. She has also contended that the deceased was not in a sound state of mind and was hospitalized soon after the execution of the Will. She has further contended that the Will was executed by fraud or undue influence or importunity and is not natural. 3. Based upon the aforesaid pleadings issues came to be framed in this Suit by Justice Abhay S. Oka on 8 th August 2007 as follows and which are answered as follows: ISSUES FINDINGS 1. Whether the writing dated 4 th April 1993 is the validly executed Will of deceased Lady Jena Duggan. Yes 2. Whether the deceased Lady Jena Duggan was in sound and disposing state of mind at the time of execution of the said writing dated 4 th April 1994. Yes 3. Whether the Defendant proves that at the relevant time the testator of the Will was not in sound and disposing state of mind. No 4. Whether the writing dated 4 th April 1993 has been obtained by fraud and undue influence as alleged in para 7 of affidavit in support of caveat. No 5. What relief ? As per final order. 3 TS.78.94-TP.156.94.sxw 6. What Order ? As per final order. 4. The Plaintiff has sought to prove the Will of the deceased through the affidavit of examination-in-chief of one of the attesting witnesses who is an Advocate of this Court. The other attesting witness has admittedly expired. The Plaintiff has not led evidence himself. He has not led evidence of any other witness. Counsel on behalf the Plaintiff sought to rely upon an affidavit of a Doctor who is a General Practitioner and who was stated to be the family Doctor of the deceased, which was filed on 30 th November 1994, in Misc. Petition No.16/1994 for revocation of the Letters of Administration granted earlier. The Doctor has since expired. His death certificate has been produced. 5. The Defendant has led evidence of herself, a friend of the deceased and another Doctor. The Defendant has essentially contended that the deceased was not in a sound state of mind and was unduly influenced by the Plaintiff in executing her Will which largely benefits the Plaintiff; in fact he is almost a sole beneficiary of her estate. The friend of the deceased has been examined to show the mental state of the deceased during the period prior to the execution of the Will and thereafter. The Doctor who has been examined was known to the deceased more as a friend than as her Doctor. He is examined also to show her state of health. He has visited her twice, examined her once and refrained from treating her after his initial prescription. 6. The Plaintiff has relied upon the Will itself, a duplicate copy of the Will endorsed by a Special Executive Magistrate (SEM), the death certificate of the deceased as also her family Doctor and copies of certain correspondence and certain legal proceedings between the deceased 4 TS.78.94-TP.156.94.sxw and the Defendant in the Civil Courts. 7. The Defendant has also relied upon certain correspondence between the parties and their Advocates, the proceedings in the Civil Suits, the death certificate of another Doctor one Dr. Mujumdar and the records of Breach Candy hospital for medical treatment given to the deceased under a specified registration number. 8. It may be mentioned that the Plaintiff has essentially sought to prove his case of the execution of the Will by the sole evidence of an attesting witness to the Will. Though in a given case such evidence is sufficient to prove the Will of the deceased, it will have to be seen whether in this case it would suffice if there are certain suspicious circumstances as claimed by the Defendant which the Plaintiff must explain by leading evidence. Essentially such evidence would precede the evidence of the attesting witness under the provisions of Order 18 Rule 3-A of the C.P.C. In any event, the Plaintiff, upon showing reasons, may seek to lead evidence to explain certain suspicious circumstances or otherwise after the evidence of the attesting witness is over. Since the evidence of the Plaintiff would be entirely different from the evidence of the attesting witness the Plaintiff may be allowed to lead such evidence even if the evidence of the attesting witness is complete as it would not be a case of filling up the gaps or lacuna, but explaining the suspicious circumstances. In this case the Plaintiff has refrained from leading evidence. The Defendant has contended that there are several suspicious circumstances which the Plaintiff must explain. Counsel on behalf of the Defendant specifically took out an application to direct the Plaintiff to lead evidence so that she can cross examine him. He further 5 TS.78.94-TP.156.94.sxw applied for calling the Plaintiff as the witness of the Defendant upon certain affidavits filed in other related proceedings after the death of the deceased. That application came to be disallowed. After the parties were heard at length the Court examined the evidence and once again sought to give liberty to the Plaintiff to lead evidence, if he chose to remove the suspicious circumstances as were shown by the Defendant in the related proceedings. Counsel on behalf of the Plaintiff specifically stated that the Plaintiff need not lead any oral evidence. 9. Of course, the Plaintiff must prove due execution of the Will. The Defendant has to show the specific unsoundness of mind such as to disqualify the deceased from executing the Will. The Defendant must further show the specific undue influence tantamounting to such coercion on the part of the Plaintiff as would vitiate the Will of the deceased. 10.It is within these parameters that the oral and documentary evidence of the parties would have to be considered. 11.Issue Nos.1 & 2 : Lady Duggan, a Dowager, lived in her own property which was a bungalow. She had two sons. Both the sons predeceased her. The Plaintiff is the son of one of her sons, Homi through his first wife Aban, who was the original Plaintiff, who initially sued as Constituted Attorney of the present Plaintiff. The said Homi had divorced Aban and married another wife Eileen who left behind a daughter Ferina, the Plaintiff’s step sister. The other son of the deceased, one Nusli also predeceased the deceased. He left behind the Defendant as his widow. The Defendant has no issues. 6 TS.78.94-TP.156.94.sxw 12. The Defendant lived in a part of the property of the Plaintiff which is a bungalow in her capacity as the wife of the son of the deceased who lived therein during his life time. The Defendant’s matrimonial home is in that part of the premises. She has lived there since her marriage. After the death of her husband Nusli her possession in the property was apprehended to be disturbed. She sued the Defendant for protection of her possession and for restraining the deceased from dispossessing her without adopting due legal process. 13.The deceased sued her in a trespass action. That was the due legal process which she had adopted. The two suits have been heard together. It has resulted in a decree for possession. An appeal has been filed therefrom which is pending. 14.Both the suits were filed in 1983 in the Bombay City Civil Court. The judgment in the aforesaid suits has been delivered on 28 th February 1990. An appeal therefrom has been filed in 1990. The deceased and the Defendant have been, therefore, litigating since 1983 until after the Will has been executed. 15.The deceased had no relatives other than the Plaintiff and his step sister to bequeath her estate. Of course, she could have considered certain charitable institutions; she was attached to and worked for one such institution being the National Institution for the Blind. 16.The deceased was 96 years old at the time of the execution of the Will. 7 TS.78.94-TP.156.94.sxw The deceased was a Social Worker. She had, aside from the aforesaid immovable property where she lived in a bungalow, certain antique furniture and a large amount of movable properties in the form of shares of limited companies. 17.The Plaintiff has been residing in London, U.K since more than a decade prior to the execution of the Will. It is the case of the Defendant that he was permanently settled in London for 35 years prior thereto; It is the case of the Plaintiff that he was settled there for about 14 to 15 years. The Plaintiff had never been to India or visited the deceased during the aforesaid period of time. The Plaintiff came to India only a month prior to the execution of the Will and lived with the deceased for about a fortnight in February/March 1993. He is stated to have left India for the U.K on 3 rd March 1993. 18.The deceased executed her Will on 4 th April 1993, a month thereafter. The deceased was not hospitalized at or before that time. The deceased was hospitalized between 19 th April 1993 to 15 th May 1993. She returned home from the hospital. The deceased expired on 2 nd September 1993. 19.The Plaintiff has relied upon the duplicate copy of the Will also. That copy of the Will has been endorsed by the SEM. The SEM is one Jamshed Aga (J. Aga) who is shown by both the parties to be confidante of the deceased. 20.The Plaintiff or his mother were not in India when the Will was executed. The Will has been kept by the deceased. There is no 8 TS.78.94-TP.156.94.sxw evidence to show how the Plaintiff’s mother or the Plaintiff came into custody of the original Will to apply for L.A. The Plaintiff’s mother is stated to have come to India between December 1993 to April 1994. The Plaintiff is stated to have come to India between March 1994 to April 1994. The three named Executors in the Will renounced their Executorship. There has been a letter written by one of the Executors to the Plaintiff which has not been produced in evidence though relied upon in the affidavit of documents of the Plaintiff. There has been other correspondence also by the Plaintiff or his Advocate with the Advocates on behalf of the Defendant which is admitted correspondence. The Executors have renounced their Executorship on 23 rd February 1994. The Petition came to be filed initially by the Plaintiff’s mother as his constituted attorney in March 1994. L.A came to be issued on 30 th May 1994. The Plaintiff’s mother is stated to have left India for London on 31 st May 1994. 21.The Defendant first sought to challenge the L.A by the notice issued by her then attorneys M/s. Hooseni Doctor & Company under their letter dated 10 th June 1994, in which she alleged only that the L.A were obtained fraudulently by suppression of the fact that she was an heir of the deceased under a Will not genuinely executed. She has not alleged that the deceased was not in a sound state of mind or that the Plaintiff exercised undue influence upon her to execute the Will. These contentions have been taken up in the affidavit in support of the Caveat, perhaps justifiably, after the Defendant was seen to be an heir and the L.A granted by the Court on 30 th May 1994 came to be revoked and her Caveat came to be accepted. 9 TS.78.94-TP.156.94.sxw 22.It may be material to see how the Plaintiff obtained the custody of the original and duplicate Will of the deceased, how and why the Plaintiff came incidentally only a month prior to the execution of the Will by the deceased to India after a lapse of at least 1½ decades when he had not met the deceased and why the Plaintiff or his mother came soon after the death of the deceased or whether they had come on occasions in between also. 23.It may be mentioned that the aforesaid correspondence by and between the then attorneys of the Plaintiff and the Defendant show the case of the Plaintiff at the time of the filing of the initial Petition and how the Defendant was not shown as an heir of the deceased being the widow of the predeceased son of the deceased. 24.The Defendant has relied upon and got produced in her cross examination a copy of a letter written by the Plaintiff to his then attorneys giving specified instructions as also setting out the circumstances relating to the execution of the Will and the grant of L.A as also what transpired between the Plaintiff and the Executors mentioned under the Will. The letter assumes significance in view of the fact that the Defendant has been cross examined upon that letter. The letter reflects the role of the Plaintiff and the Executors after the death of the deceased and prior to the contest in this Petition. That letter, of course, has not been relied upon by either of the parties in their affidavit of documents, but has surfaced in the cross examination. It is a part of the record of this Court in a Contempt Petition between the parties. 10 TS.78.94-TP.156.94.sxw 25.Further though the Plaintiff has not sought to examine any Doctor of the deceased though she was admittedly hospitalized and given her very advanced age would be expected to have Doctors who treated her, the Plaintiff has relied upon an affidavit of a Doctor filed in the earlier Misc. Petition. The Plaintiff has sought to rely upon the evidence of that Doctor, since deceased. 26.The Will of the deceased has been executed on 4 th April 1993. The deceased lived alone at that time in her bungalow. The Will has been signed by the deceased which has been attested by two attesting witnesses. Both the attesting witnesses are reputed Advocates of this Court. The attesting witness who has been examined served as an Advocate Assistant to a Senior Solicitor whom the deceased met on several occasions. The other attesting witness has been one of the most renowned Senior Counsel of this Court. He has since expired. Counsel on behalf of the Defendant has fairly stated that his attestation is beyond reproach. 27.The deceased appointed three Executors under the Will. One was her confidante Jamshed. Aga who has put his endorsement as an SEM on the duplicate copy of the Will. One of the Executors is an attorney of this Court. After making four minor bequests to her nephew, cook, aaya and driver, she has bequeathed ½ of the residue of her entire estate consisting of movable and immovable properties to the Plaintiff absolutely. She has directed her Executors to hold the other ½ of the estate for her granddaughter Ferina who would obtain it when she attains the age of 55 years absolutely on the condition that she did not marry a certain person named in the Will. If she did so marry, her entire 11 TS.78.94-TP.156.94.sxw estate would belong to the Plaintiff. She is stated to have since married the said person and has never claimed her share. The Executors are to distribute her estate and their decision would be binding upon the Plaintiff as well as said Ferina. 28.The Will is typewritten. It bears the docket of M/s Kanga & Company, Advocates and Solicitors. The docket shows a handwritten date of the Will. 29.The original Will shows the signatures of the deceased and the two attesting witnesses described above. It bears the date in a completely different handwriting. The date of the execution of the Will is not challenged as being specifically executed on any other date by either party. 30.The attesting witness has filed her affidavit in support of her Petition as well as the affidavit of evidence. The affidavit in support of the Petition of the attesting witness dated 7 th March 1994 shows inter alia that there were only three persons present at the time of the execution of the Will. These are the mandatory persons required for attestation of a Will, attested in the presence of the deceased as well as one another. The affidavit is stated to have been made under Rule 375 of the High Court (Original Side) Rules and as per Form 102 thereto. The affidavit further shows that at the time the deceased executed the Will “there were additions made in ink on lines 23 and 24 of page 2 adding “fourth” and “April” ”. This specific averment is not as per the specific mandate of Form 102. 12 TS.78.94-TP.156.94.sxw The mandate under the rules is complied. The affidavit is made as per Form 102. The specific averment with regard to the additions is also made in paragraph 5 of the affidavit. 31.The further averment in the affidavit is relating to the sound and disposing mind and memory and understanding of the deceased at the time of the execution of the Will. 32.The affidavit of examination-in-chief of the attesting witness to the Will shows that she is a practicing Advocate and Notary in Mumbai. Between 1960 to 1969 she served as Advocate Assistant in the firm of M/s. Mulla & Mulla & Craigie Blunt & Caroe, Advocates and Solicitors with Mr. N.K. Petigara and Mr. S.R. Vakil who were then partners in that firm. Since 1969 she served as an Advocate Assistant to Mr. S.R. Vakil. He had his office in Bombay House, Fort, Mumbai where the office of the other attesting witness was also located. 33.She knew the deceased. The deceased used to visit her Senior as well as the other attesting witness in their office in connection with certain of her charitable works. She got to know her better after April 1969. 34.She has shown how she and the other attesting witness came to attest the Will at the residence of the deceased on 4 th April 1993 in her bungalow. The two attesting witnesses were likely candidates to be so. 35.They met the deceased. J. Aga, who was known to the other attesting witness, also was present at the meeting. The deceased produced the typewritten document and informed them that that was her Will. The 13 TS.78.94-TP.156.94.sxw deceased signed the Will. She requested them to attest the Will. She and the other attesting witnesses signed at the foot of the writing when J. Aga was also present. This was at the request of the deceased. All three of them, the deceased and the two attesting witnesses were present at the same time on 4 th April 1993 at her residence. She identified all the signatures. 36.She further deposed that at the time the deceased executed the Will the words “fourth” and “April” had been added in ink by J. Aga in his handwriting in the execution clause. 37.She further deposed that from the behaviour and talk of the deceased it was clear to her that the deceased was in a sound state of mind, memory and understanding and executed her Will voluntarily. 38.She further deposed that after executing the Will the deceased retained the original Will with herself. Prior to the death of the deceased she was not acquainted with the Plaintiff or his mother. She confirmed that none other than the deceased, the other attesting witness and J. Aga were present at the time of execution. She confirmed whatever was stated in her affidavit in support of her Petition. 39.Mr. J. Aga has since expired. The duplicate Will shows the rubber stamp of J. Aga with his signature in black ink. The original Will shows the words “fourth” and “April” in black ink. A comparison between the handwriting contained in the full signature of J. Aga and the handwriting in the date show that it is of one person. His presence at the time of execution affirmed by the attesting witness has not been 14 TS.78.94-TP.156.94.sxw contested. His presence in the initial affidavit of the attesting witness in support of the Petition dated 7 th March 1994 is of course not shown as it is not mandatorily required to be shown under the rules of this Court. The fact that J. Aga was a man of her confidence has been deposed by the Defendant herself in paragraph 13 in her examination- in-chief as also in her cross examination. The Defendant has averred that the said J. Aga was in total charge and control of the papers of the deceased including her Bank papers. She has, of course, alleged a conspiracy of the Plaintiff and the said J. Aga to sell the property of the deceased to her exclusion. 40.The cross examination of the attesting witness shows that she had met the deceased 3 or 4 times in the office of Mr. S.R. Vakil as well as the other attesting witnesses about a couple of years before the date of the execution of the Will. She was not aware of the hospitalization of the deceased in 1993. 41.Relating to the actual execution and attestation of the Will she has deposed that she reached the residence of the deceased at about 11.30 a.m and she was there for half an hour. She went with the other attesting witness. She met the deceased in one side room where she sat on her chair and not on bed or wheel chair. She did not know that the deceased was 96 years old, but knew that she was quite old. J. Aga received them and took them in the room where the deceased was sitting. They expressed some pleasantries. The deceased then told them that she had called them to attest the Will. She did not know the purpose why she was called. The deceased produced the Will. She signed in their presence and thereafter they attested. 15 TS.78.94-TP.156.94.sxw 42.She deposed that she had not taken part in its preparation. The Will was not read by the deceased or by the attesting witnesses at that time. No discussion took place at that time about the date on the Will. No discussion took place with J. Aga before the execution of the Will. She clarified that there was no reference to J. Aga in her affidavit in support of the Petition because that was in accordance with the prescribed format. 43.She further deposed that the date on the docket was not put by J. Aga. She refuted the case that on that day the deceased