1 Spb/- IN THE HIGH COURT JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION APPEAL NO. 433 OF 2005 IN SUIT NO. 19 OF 1998 IN TESTAMENTARY PETITION NO. 291 OF 1996 ZARINE SHAPUR RAO ] ... APPELLANT. Parsi Zoroastrian, ] (Org.Caviatrix- Inhabitant of Bombay, ] -Defendant) R/at. 8,Saker Apartments, ] Pochkhanwana Road, ] Worli, Mumbai -400 025. ] V/s. 1. AVABAI BOMANJI WADIA ] Parsi Zoroastrian, ] inhabitant of Bombay, ] R/at.82,Las Palmas, ] Little Gibbs, Road, ] Mumbai  400 006. ] ] 2. NOSHIR ARDESHIR SOONAWALA ] Parsi Zoroastrian, inhabitant ] of Bombay, R/at, 29 Hampton ] Court, Colaba, Mumbai-400 005 ] ] 3. ADI LIM BILLIMORIA, ] ... RESPONDENTS. Parsi Zoroastrain,inhabitant ] (Org.Plaintiffs) of Bombay,R/at.32, Nepean See ] Road, Malabar Hill, Mumbai-06.] ] The three of the Executrix and ] Executors respectively named ] under the Will of the deceased ] Adreshir Khurshedji Wadia. ] --- 2 Mr. M.P.S.Rao with Girish Kulkarni i/by Joy Legal Consultant for the Appellant. Mr. Gaurav Joshi i/by Mulla & Mulla & CBC for the Respondents. --- CORAM: D.K.DESHMUKH AND V.R.KINGAONKAR,JJ. DATED: 22nd MARCH, 2010 JUDGMENT : (Per V.R. Kingaonkar,J) 1. The defendant, original caveater, has filed this Appeal assailing the Judgment in Suit No. 19 of 1998. By the impugned Judgment, the learned single Judge decreed the suit and granted probate in respect of the Will dated 8th July, 1995, allegedly executed and left by the deceased Ardeshir Khurshedji Wadia. 2. Ardeshir @ Khurshedji Wadia was a widower. He died on 2nd April, 1996 without leaving any issue or close relative. His only surviving heir and next-to- kin as per the Indian Succession Act, 1925, as applicable to the Parsees, is original Petitioner No.2 -Noshir Ardeshir Soonawalla, being his paternal cousin. The appellant is a daughter of Khorshed who 3 happens to be the sister of deceased Aloo, the predeceased wife of deceased Ardeshir @ Adi. Aloo died in or about December, 1987. 3. Originally, the respondents filed Testamentary Petition No.291 of 1996. Original petitioner no.1 i.e. deceased Avabai was wife of the pre-deceased brother of Ardeshir alias Adi. The Appellant s mother by name Khurshid was allowed to occupy one room in the Flat No.61, Las Palms, Mumbai. Ardeshir alias Adi used to reside in rest of the Flat No.61. The Appellant and Dr. Rusi Variava, who is named as one of the Executors, out of the four Executors under the disputed Will, are real sister and brother, interse, being the daughter and son of said Khorshed. Dr. Rusi Variava is a Neuro Surgeon. He used to treat deceased Ardeshir @ Adi since 1993 onwards, intermittently, besides the family doctor and other medical practitioners. It appears that deceased Ardeshir @ Adi was admitted in Dr.B.D.Petit Parsee General Hospital between 2nd of May to 14th May, 1995 due to urinary infection. He was then under treatment of 4 Dr. Udwadia. 4. The respondents filed petition, seeking probate of the Will dated 8th July, 1995 purportedly executed by deceased Ardeshir @ Adi. They submitted that it was the last Will left by the deceased Ardeshir @ Adi. They asserted that they were nominated as Executors of the suit Will alongwith the fourth Executor, namely, Dr.Rusi Variava but the latter did not join them in spite of their request to do so. According to them, deceased Ardeshir @ Adi has left properties described in the Schedules which are annexed to the Petition and are shown under the Will. They averred that the Will dated 8th July, 1995 is the last bequeath made by deceased Ardeshir @ Adi in respect of the Scheduled properties. They urged, therefore, to grant probate in pursuance of the said Will. 5. The Appellant filed caveat in the Petition. The Petition was thereafter converted into Suit No. 19 of 1998. 5 6. The Appellant resisted the Suit on various grounds. She contended that her mother -Khorshed used to look after deceased Ardeshir @ Adi after the death of his wife Aloo. The Will Deed could not have been executed by deceased Ardeshir @ Adi on account of his own volition. His physical condition was so deteriorated that he was unable to make his signature. He had executed the previous Will Deed whereby he had bequeathed all the jewellery items to her alongwith residuary estate to herself and her brother and also had bequeathed the flat 61-Las Palmas to her brother Dr. Rusi Variava. 7. The Appellant s case further was that deceased Respondent No.1 Avabai disliked deceased Aloo and her relatives. She continued to nurture antipathy towards said Aloo till the latter s death and thereafter, towards Khorshed and the appellant. It was she (Avabai) who got manipulated a false Will Deed of Ardeshir @ Adi by exerting undue influence over him. The said Will is not the true Will of Ardeshir @ 6 Adi but is tailored as per the desire of deceased Respondent No.1 Avabai. In fact, Ardeshir @ Adi was not physically and mentally able to take any decision and could not have bequeathed the properties as shown under the Will in dispute. His testamentary capacity was badly impaired. The legacy which was made by the earlier Will Deed had been dropped vide the disputed Will and, therefore, it was not a document representing true Will of the deceased. The Will Deed was drafted and got signed from deceased Ardeshir @ Adi without his understanding of the contents thereof. It was brought into existence under unnatural circumstances. The deceased respondent no. 1, i.e. Aavabai had practised a fraud on him. He was of feeble mind due to senility and could not have taken any independent decision on his own. The earlier Will Deed dated 12th August, 1989 was drafted by Solicitors M/s. Wadia Gandhyee and Company whereas the suit Will was drafted by M/s. Maneksha and Sethna. The change of the solicitors could not be the conscious act of deceased Ardeshir @ Adi and it was purportedly done at behest of the deceased 7 Respondent No.1 (Avabai). The Appellant alleged that deceased Respondent No.1 Avabai invaded, controlled and manipulated the mind of Ardeshir @ Adi and forced him to sign the said Will. The Appellant further alleged that it was most likely that signature of deceased Ardeshir @ Adi was obtained by holding his hand without his understanding the purport of his signatures and as such it is not a genuine Will of deceased Ardeshir @ Adi. Consequently, the Appellant sought dismissal of the Suit. 8. The parties went to trial over certain issues framed by the learned single Judge. They adduced oral and documentary evidence in support of the rival contentions. On merits, the learned single Judge came to the conclusion that due execution of the Will dated 8th of July, 1995 has been proved. He repelled the contentions of the Appellant. He came to the conclusion that deceased Ardeshir @ Adi was in sound and disposing state of mind at the time of the execution of the Will dated 8th July,1995 and, therefore, it was a valid Will executed by him. 8 Hence, he directed grant of probate of the Will in question. 9. We have heard learned counsel for the parties. Counsel for the Appellant would submit that the Will dated 8th of July, 1995 is not proved to be a genuine bequeath of Ardeshir @ Adi. He would submit that there are circumstances to infer that the Will was brought in existence under domination of deceased Respondent No.1 Avabai. He would submit that the signature of Ardeshir @ Adi was engineered by deceased Respondent No.1 Avabai. He argued that deceased Ardeshir @ Adi was mentally and physically feeble and could not have himself instructed the solicitors to draft the Will like the Will in question which comprises of 19 pages. He pointed out that the property given to Dr. Rusi Variava under the previous Will, was a part of the property given to other relatives like the Appellant, which have been excluded in the suit Will. It is contended that the Will Deed in question is unnatural, invalid and could not be acted upon. It is argued that deceased 9 Ardeshir @ Adi, in all probability, was made to execute the Will deed under undue influence of said Avabai. The Counsel would submit that the Will deed is invalid and, therefore, probate ought not to have been granted on such a Will. 10. Questions that arise in this Appeal are as follows : i) Whether in the facts and circumstances of the present case, the Appellant could have legal authority and locus-standi to file caveat and challenge the Will? If yes, whether she establishes that the Will Deed was brought about at the instance of deceased respondent no.1-Avabai and on account of her undue influence on the deceased Ardeshir @ Adi ?. ii) Whether in the facts and circumstances of the present case, it is proved that deceased Ardeshir @ Adi duly executed the Will Deed dated 8th of July,1995 and that he was having disposing 10 state of mind at the relevant time ? Iii) Whether in the facts and circumstances of the present case the Will Deed in question is proved to be valid and last bequeath made by deceased Ardeshir @ Adi and, therefore, grant of probate pursuant thereto is legal and proper ?. 11. We have closely scrutinized the evidence adduced by the parties. On a close scrutiny of the evidence tendered by the respondents, it is amply clear that due Execution of the Will Deed in question is corroborated by two respectable witnesses, namely, PW-1-Maneksha- the Solicitor and Advocate and PW-2-Dr. Dastur, who was, admittedly, a Family Physician of deceased Ardeshir @ Adi. The testimony of PW-1 Maneksha purports to show that he drafted the Will Deed in question (Exh.C-5) as per instructions of deceased Ardeshir @ Adi. His version purports to show that he witnessed signing of the Will Deed by 11 deceased Ardeshir @ Adi at the time of its execution. He is attesting witness of the Will Deed. He is old man and was around 86 years of age when he entered the witness-box. He narrated as to how the Will Deed was signed by deceased Ardeshir @ Adi. His version purports to show since deceased Ardeshir @ Adi was feeling little strain, while putting his signature, the page nos.4,6,8,10,12,14,16,18 were initialed by him instead of putting full signature. Similarly, PW-2 Dr. Dastur gave identical version regarding due execution of the Will Deed by deceased Ardeshir @ Adi. He is the second attesting witness of the Will Deed. The versions of both these witnesses go to show that though deceased Ardeshir @ Adi was physically impaired and found difficulty in communication like a normal and healthy person, yet he was able to convey in monosyllabic tone and was also quite former himself. They have consistently deposed that deceased Ardeshir @ Adi was mentally alert to understand the import of his acts while executing the Will Deed (Exh.C-5). 12. We have noticed that PW- Dr. Dastur used to 12 attend Ardeshir @ Adi since 1990 onwards till his death, as a Family Physician. Not only he, but previously his father-in-law by name Dr. Noshir Ellis was the Family Physician of deceased Ardeshir @ Adi. It has come on record that PW-Dr. Dastur was introduced to deceased Ardeshir @ Adi by his father- in-law i.e. Dr. Noshir Ellis and hence, he started visiting residence of deceased Ardeshir @ Adi once in a week. His version reveals that deceased Ardeshir @ Adi used to call him telephonically as and when required. He categorically deposed that deceased Ardeshir was active and was taking keen interest in current affairs till the fag end of his life. His version further reveals that deceased Ardeshir @ Adi regularly used to take a round at Hanging Garden on a wheel chair with the help of his domestic servant. The testimony of PW- Dr Dastur clearly establishes that he went to residence of deceased Ardeshir @ Adi on 08.07.1995 at the request of the latter in order to witness the execution of the Will Deed. He was introduced to PW-Mr. Maneksha, the Solicitor and Advocate and after some formal discussion deceased 13 Ardeshir @ Adi executed the Will Deed in question. 13. We find from the versions of both the above witnesses that the core of their evidence has remained unshattered inspite of searching cross-examination directed against them. In fact, there is no substantial reason coming forth to dislodge their versions. They are independent witnesses. They have no personal or otherwise interest in supporting the due execution of the Will Deed in question. The endorsement at bottom of the Will Deed discloses that before attestation, PW-Dr. Dastur made it clear that the Executant was his patient since five years before and he used to attend the Executant once in a week. It is pertinent to note that PW-Dr.Dastur thereafter certified that the Executant was of sound mind and had executed the Will Deed on his free will. The version of the medical practitioner clinches the issue about the then mental state of deceased Ardeshir @ Adi. 14. The matter does not stop here. The due execution of the Will Deed is further corroborated by 14 PW-Avabai. She does not appear to be a direct beneficiary of the Will Deed in question. True, the appellant attributed hostility towards herself and her mother, which was allegedly nurtured by PW-Avabai ever since the time of marriage of deceased Ardeshir @ Adi, initially against his wife Aloo and thereafter, her relatives including the appellant. Still, however, there is no tangible reason to infer that deceased respondent no.1 Avabai was really having antipathy towards the appellant and her mother somuch so that she could have designed a plan to deprive them of the jewellery items and the residential accommodation. Here, it may be mentioned that by virtue of the previous Will, which was never probated, only Dr. Rusi Variava was to get the Flat No.61, Las Palms but he does not say a word about such deprivation. It is improbable that deceased respondent no.1 Avabai manipulated such a Will Deed on account of disliking of her towards relatives by deceased Aloo, the pre- deceased wife of Ardeshir @ Adi. For, the disputed Will Deed shows that amount of Rs.10(Ten) Lacs each was to be given to the appellant and her real brother 15 - Dr. Rusi Variava, who is one of the Executors of the Will. There is absolutely no explanation given by the appellant as to why Dr. Rusi Variava did not dispute the Will Deed and made any disclaimer of his status as beneficiary of the Will Deed. Moreover, the appellant herself did not enter the witness box. 15. What appears from the record is that deceased Ardeshir @ Adi was required to obtain treatment in Dr.B.D.Petit Parsee General Hospital before few months of execution of the Will Deed. It is more probable that he thereafter decided to give his Flat No.61, Las Palms, Mumbai to the said Hospital. The desire of deceased Ardeshir @ Adi could be to render post demise services to the community as such. No fault can be found with his change of attitude and particularly in view of the changed circumstances which could have made him more generous and leaning towards the charitable cause. Perusal of the Will Deed (Exh.C-5) would show that deceased Ardeshir @ Adi bequeathed various amounts to his personal staff members, like accountant, cook, domestic servant, driver etc.. 16 Indeed, if deceased respondent no.1 Avabai had to deprive the appellant from benefits arising out of the estate of deceased Ardeshir @ Adi then, there was no reason to make a provision for bequeath of Rs. 10 (Ten) Lacs in her favour. Needless to say, the Will Deed in question reflects true Will of deceased Ardeshir @ Adi. It does not appear to be brought about under domination of deceased respondent no.1 Avabai. 16. Counsel for the Appellant would submit that signature of deceased Ardeshir @ Adi is patently managed with physical help of someone else. He contended that the signature of deceased Ardeshir at page no. 19 of the Will Deed is reflective of some- one s holding of his hand for making of such signature. Let it be noted that the appellant did not dispute genuineness of the signatures appearing on the Will Deed. The signatures were not referred to any hand writing expert for the purposes of comparison and opinion. It was only pleaded by the appellant that signature of deceased Ardeshir @ Adi was guided 17 one . Obviously it cannot be said that the signature was not that of deceased Ardeshir @ Adi. There is absolutely no evidence to hold that deceased Ardeshir @ Adi was forced by any other person to sign the Will deed. 17. We have closely scrutinized the version of DW-1- Shapur Phiroze Rao, who is the husband of the appellant. The version of DW-Shapur Phiroze Rao is founded on inferences regarding the probability of deceased Ardeshir @ Adi being unable to execute the Will Deed in question (Exh. C-5). He states that deceased Ardeshir @ Adi was physically impaired and was unable to feed himself since middle of the year 1994 and as such could not have taken any independent decision to execute the Will Deed in question. He admitted that initially the appellant had not agreed with his suspicion regarding authenticity of the signature of deceased Ardeshir @ Adi on the Will Deed (Exh.C-5) It follows that though DW-Shapur had expressed doubts about genuineness of the signatures of deceased Ardeshir @ Adi, yet the appellant did not 18 agree with him in the initial period. He was confronted with the affidavit of the appellant, which indicates that DW-Dr. Dastur was visiting deceased Ardeshir @ Adi every alternate day. He deposed that if such is a statement is made in her affidavit, it may be correct. His admissions and version would show that PW-Dr. Dastur has no reason to speak lie. The version of PW- Dr.Dastur, therefore, becomes more creditworthy. The explanation of DW- Shapur regarding non-examination of the appellant is unconvincing and unacceptable. He admitted that the appellant was present in the court when his statement was recorded and she attended the proceedings throughout. 18. Though the appellant alleged that deceased respondent no.1 Avabai had developed antipathy towards deceased Aloo, the wife of deceased Ardeshir @ Adi and thereafter towards her mother and herself; yet the elaborate testimony of DW-Shapur does not spell out any kind of ingrained bias or hostility nurtured by deceased respondent no.1 Avabai against deceased 19 Aloo and her relatives. The main focus of his evidence is on alleged inability of deceased Ardeshir @ Adi to properly communicate his Will and mental incapacity to pass on his estate by testamentary disposition. He deposed that since about couple of years prior to death of Ardeshir @ Adi, the latter s condition had deteriorated. According to him, speech of Ardeshir @ Adi had become increasingly slurred due to the spastic tongue. He further narrated that the memory of Ardeshir @ Adi was impaired and that he was unable to comprehend the things. It is difficult to give much credit to his version in the context inasmuch as the Family Physician (PW-Dr.Dastur) does not subscribe to it. 19. The version of DW-2- Dr. Khalid purports to show that he was houseman working with Dr.Udwadia during the period Ardeshir @ Adi was hospitalized in Dr.B.D. Petit Parsee General Hospital. His version lends corroboration to the entries in the discharge card. The discharge card (Exh.C-3) reveals that Ardeshir @ Adi was treated as indoor patient in the 20 said hospital between 2nd May to 14th May,1995. It is the version of DW- Dr. Khalid that Ardeshir @ Adi was suffering from cerebral degeneration with weakness of pharyngeal muscles, neck muscles and proximal muscles of limbs. The discharge card (Exh.D-3) clearly shows that Dr. Udwadia was the consultant, who gave treatment to Ardeshir @ Adi during the relevant period. It is explicit that the weakness and degeneration could be attributed to old age of deceased Ardeshir @ Adi. Moreover, Dr. Udwadia is not a Neurologist nor he referred the patient to any Neurologist. There is no reason coming forth as to why Dr. Udwadia was not examined by the appellant. It is of common knowledge that when a patient is discharged from hospital, ordinarily, it is the outcome of improvement in his health. In any case, testimony of DW- Dr. Khalid is insufficient to establish that at the time of execution of the Will Deed in question (Exh.C-5), deceased Ardeshir @ Adi was physically and mentally unfit to bequeath the properties. For, he does not know about physical and mental condition of Ardeshir @ Adi as was at the 21 relevant time when the Will deed (Exh.C-5) was purportedly executed on 8th July, 1995. In our opinion, therefore, the respondents have duly proved execution of the Will by Ardeshir @ Adi and that it is a valid Will. 20. The law regarding burden of proof, as required under Section 63 of the Succession Act, is well settled. To prove due execution of a Will, the following facts are to be established. (1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will; (3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the 22 presence of the testator. 21. Counsel for the appellant would submit that the execution of the Will Deed is shrouded in suspicion. He argued that deceased Ardeshir @ Adi could not have executed such a complicated and laboured Will. He contended that Ardeshir @ Adi was physically impaired and it was extremely difficult for him to manage his daily physical chores. It is argued that execution of the Will Deed by such a person is rather difficult to believe and the suspicious circumstances would make the Will quiet unreliable. Reliance is placed on Smt. Jaswant Kaur vs. Smt. Amrit Kaur (AIR 1977 Supreme Court 74). The Apex Court observed in the given case that in cases where the execution of the Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. It is observed : . .......... What, generally, is an adversary proceeding becomes in such cases a matter of the court s conscience and then the true question which arises for 23 consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will . 22. The Apex Court in the given case held, on facts, that the propounder had failed to discharge the onus of explaining the suspicious circumstances surrounding the execution of the Will. The fact situation, in the present case, stands on different footings. We have noticed that the respondents are mere executors of the Will and they did not have any personal interest as such. They are not real beneficiaries of the Will Deed in question. In our opinion, rigor of burden of proof in such a case will not be that heavy as is expected in cases where the beneficiary is himself the propounder of a disputed Will. No one from them was likely to gain anything except one of them i.e. the fourth executor, namely, Dr. Rusi